“This regulation will not prevent construction.”
That was Manchester Board of Heath Co-chair Peter Colarusso’s opening comment to the Planning Board (PB) Monday when presenting the proposed “BOH Drinking Water Protection Regulation” that, if adopted, could be implemented as early as January 2023.
Colarusso has been making the rounds to solicit feedback from boards and committees. By the time he’s done, the Board of Health will have solicited feedback from five town boards. The regulation would require a new BOH permit process and a hydrogeological study to assess potentially impacted groundwater connected to any source of potable water which includes ponds, vernal pools, streams, wetlands, and aquifers contributing to those water supplies “now and in the future.”
Colarusso said the regulation is about protecting our water supply and it would be compatible with land use regulation.
Pushback from the Planning Board members came early, and it centered on fundamentals. They asked if it amounted to land use regulation, currently set out in the Town Bylaw and already regulated by the Planning Board and ZBA. PB member Sarah Creighton said the intent was “commendable,” but asked Colarusso if the regulation had been vetted by Town Counsel. He said it hasn’t.
“It seems to me that a lot of this is already covered in zoning,” she said, observing that the 23-page draft BOH regulation addresses stormwater management, earth removal, bedrock disruption, and drainage, among other things.
The Manchester Zoning Bylaw has already established a “Water Protection Overlay District,” which requires a special permitting process under the Planning Board. Further, Manchester already has a 300-page Comprehensive Wastewater Management Plan, overseen by the DPW under regulation by the Massachusetts Department of Environmental Protection to monitor and safeguard the municipal drinking water and wastewater systems.
The way it is written, the BOH regulation goes outside these in two ways. First, it kicks in for areas beyond the Water Resources Overlay District and, second, it has the power to require a hydrological engineering analysis, a certificate of compliance, and an operations permit for projects proximate to “potential future” sources of water that, by definition, have not been identified.
The regulation has been in the works at the BOH since November 2021. It was drafted by Dan Hill, an outside attorney for the Manchester Essex Conservation Trust (MECT) and sent soon thereafter to individual BOH members by MECT Executive Director Patrice Murphy, according to Colarusso.
It covers large projects, including those with an onsite sewage wastewater treatment plant (greater than 10,000 gallons/day) or large buildings or homes with large onsite septic systems (2,000+ gallons/day).
It is not clear if development projects that would connect to the town sewer system would need to comply. And that is a challenge because modest projects are also triggered by the proposed regulation, such as those that disturb or remove more than 250 cubic yards of material, which is akin to digging a 10-ft basement for a 30-ft by 30-ft structure. It’s also triggered by projects that add 2,500-sf of impervious surface, which is equivalent to building a 1,200-ft home and driveway.
Some at Monday’s Planning Board meeting asked if addressing new construction and land use is an effective way for the BOH to reach its goal.
“I don’t know why someone hooked into the municipal sewer system would be required to do this,” said Chris Olney of the Planning Board. “Most of the runoff in this town is from existing properties, not new development. Most of the pollutants come from existing properties. Are you considering some kind of bylaw change to start regulating drainage and runoff from existing properties, which is what’s going to be producing most of the pollution?”
Manchester Town Planner Sue Brown agreed.
“I’m curious as to why we’re just not banning the substance where it’s known, rather than going a different route,” she said.
Changing the zoning bylaw is difficult, by design, requiring a 2/3 majority of Town Meeting voters. In fact, the Planning Board has been working for three years with a consultant to bring an updated Town Bylaw to voters at November’s Special Town Meeting. The “recodification” process is something that all municipalities undertake every decade or so to streamline bylaws and make them current with new state laws and updated community needs.
Adopting the proposed BOH regulation requires no vote by residents. Instead, if the proposal is to be adopted, the BOH is required to hold one public hearing before voting on it as a board. If it passes by a simple majority, it becomes a local requirement. The implementation date on the current draft BOH regulation is January 1, 2023.
Next week we will explore other municipalities that have adopted BOH water regulations and how they differ with Manchester’s BOH proposed regulation.