Other BOH Drinking Water Regs Differ From MBTS Proposed Reg

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Nine other municipalities in Massachusetts have adopted Board of Health (BOH) water regulations that are just like those currently being presented by Manchester BOH co-chair Peter Colarusso to various boards for feedback.  

That’s been Colarusso’s refrain for more than nine months of vetting the “BOH Drinking Water Protection Regulation” that, if adopted in its current form, would impact current land use. 

The proposed 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.” 

The towns with BOH regulations cited by Colarusso are Bourne, Dennis, Duxbury, Lexington, Nantucket, Rehoboth, Sherborn, Wayland, and Weston.  But nearly all of them derive from two templates provided by the Massachusetts Dept. of Environmental Protection (DEP) to help Boards of Health beef up groundwater safety.  The first addresses regulating groundwater that is connected to wellhead areas.  The other is tied to BOH regulation of septic systems, private wells and small wastewater treatment systems under the state’s Title 5 wastewater law.  

Like all municipalities, Manchester has a “resource overlay district” certified by Mass DEP to mark and safeguard our town’s water supplies.  The district surrounds the Lincoln Street Well and Gravelly Pond on upper Pine Street.  Homes and businesses (as well as the ME District’s two schools) are within “Zone 2” of the Lincoln Street well and already require a special permitting process from the Planning Board for any construction.  Further, Manchester operates under a 300-page Comprehensive Wastewater Management Plan, overseen by the DPW and regulated by Mass DEP to DEP to ensure the proper management of all the Town’s wastewater and ensure a safe drinking water system.   

Last week, members of the Planning Board expressed concern that the current draft of the proposed BOH regulation reads like zoning, set out in the Town Bylaw and overseen by the Planning Board and ZBA.  If the BOH was interested in controlling pollutants in groundwater, they asked, why not target pollutants and sources of them within the resource areas?

The 23-page draft BOH regulation addresses stormwater management, earth removal, bedrock disruption, and drainage from construction projects.  It would require a BOH permit and requires a hydrological engineering analysis, a certificate of compliance, and an operations permit in areas beyond the Water Resources Overlay District.  And, the regulation is triggered by projects close to “potential future” sources of water which, by definition, aren’t yet known. 

Do other towns require this?  Not really.  

For instance, Rehoboth’s BOH regulation requires hydrogeologic study for development of large developments, but it’s focused on developments with small independent wastewater treatment systems.  In Nantucket, hydrologic studies are required for homes with private wells (which make sense, especially if they’re within range of a private septic system).  In Lexington, BOH regs govern soil removal, but they are triggered when a project lies within Zone 1 or 2 of the DEP’s wellhead overlay district.  Duxbury requires a 200-foot setback, but it’s to protect contamination of private wells.  Sherborn amended its water regulation in 2019 to add an environmental health impact report and expand reporting of bedrock disruption beyond drilling of private wells, but, these are focused on independent wastewater treatment systems.  

Manchester’s BOH regulation would go beyond wellhead protection zones and would kick in for areas with a lower bar (streams, vernal ponds, rivers).  Further, it seeks to protect “potential future” sources of water which, by definition, are unknown.  It’s also not clear if projects connected to the town sewer system would need to comply.  These are a challenge because large and modest projects are impacted 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. 

Only one municipality—Dennis—has a comprehensive BOH drinking water regulation, in the form of a variance called “16.B Standards for Environmentally Sensitive Areas.”  Located on Cape Cod, Dennis is addressing unique and pronounced regional water quality challenges stemming from sandy soil and excessive nitrogen in the surface and groundwater connected to fertilizer and fragile private septic systems.  (Cape Cod has less than four percent of the Massachusetts population but 20 percent of the septic systems in the state.)

The 16.B Variance in Dennis bridges several areas and boards (wetlands, groundwater, pollutants, etc.) and it is the only municipality of the nine towns where “potential future sources” of potable water is mentioned.  However, when contacted, a health administrator for Dennis said this language is interpreted to mean potential future sources of potable water as certified by the DEP.  In other words, if the resource overlay district is redefined or expanded, the new areas would be covered.

Manchester’s proposed BOH 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 then sent to BOH members by MECT Executive Director Patrice Murphy, according to Colarusso.  

The Planning Board has been working for three years to bring an updated Town Bylaw to voters at November’s Special Town Meeting.  The “recodification” process—which requires a 2/3 majority of voters to pass—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.   

When asked why the BOH wasn’t targeting pollutants, since most of the runoff and pollutants that enter groundwater come from existing properties not new construction, Colarusso said the board “has to start somewhere.”

The Board of Health has not scheduled a public hearing to review the proposed regulation, which is required before it can vote on its proposed regulation.  If it passes by a simple majority of the board, the regulation immediately becomes law.

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