Citizen’s petition at Town Meeting aims to protect your groundwater
One of the more hotly debated articles on the Town Meeting warrant is a citizen’s petition that aims to protect residents’ wells from contamination by cluster developments. The citizen’s petition, Article 32, amends the Town’s Zoning bylaws that relate to Open Space Subdivisions (also called cluster housing) to do two things:
It requires the Board of Health to develop protections (i.e. regulations) for wells in open space subdivisions to match safe drinking water standards based on the Safe Drinking Water Act of 1974. Private wells in Massachusetts have no such protections currently.
It requires that developers submit an Environmental Health Impact Report at the beginning of the permitting process. Currently Board of Health regulations only require an EHIR for developments with 10+ dwellings.
So let’s try to unpack what this change to Sherborn bylaws would do to protect your and your neighbors’ drinking water. (Full disclosure: I signed the petition along with 21 other residents.)
We’ll start with the Open Space Subdivision bylaw, which the article would amend. You can find this bylaw in Sherborn’s zoning regulations, section 4.5. It was updated in 2020 by Planning Board, with Marian Neutra as the most visible proponent. Its goal is to preserve open space by allowing dwellings to be clustered closer together than in most of the 1 or 2 acre zoning in town, while preserving the rest of the land as open space. The Open Space Subdivision design is meant to be the preferred alternative to conventional subdivisions in Sherborn. You can expect to see more of these for land parcels that are big enough.
So why does this bylaw need changes as regards wells or environmental protection? Take a look at section 4.5.6, section D:
D. Infrastructure. Board of Health regulations regarding water supply protection and the disposal of wastewater, and Conservation Commission regulations regarding wetland protection, shall apply. Protection of clean water resources will be a primary factor in Planning Board decisions regarding placement of residential units and overall subdivision design. For any proposed subdivision design, in particular layouts that may require clustered or shared septic systems, the Planning Board shall forward concept sketches and/or preliminary plans to the Conservation Commission and Board of Health for comment. Clustered or shared septic systems are likely to require setbacks greater than standard single family systems to prevent negative impacts on wetlands, drinking water wells and groundwater, or environmental resiliency, and therefore may require specific analyses to help determine such setbacks, and subsequent monitoring to determine their effectiveness.
Basically this section says that it’s up to Board of Health to protect the water supply and it’s up to Conservation Commission to regulate the wetlands and that clustered or shared septic systems are likely to require greater setbacks. The problem is this: the Board of Health hasn’t updated their regulations to change the setbacks to address clustered septic systems. You can find the Board of Health regulations here — look for the distance requirements for wells and septics. Setbacks from septic systems are the primary way that wells are protected right now in Sherborn but they’re currently designed for single dwellings.
If a developer comes to Board of Health right now with an Open Space development, there’s no way to enforce greater setbacks because they’re not in the Board of Health or Planning Board regulations.
Imagine that you live next door to a proposed Open Space development of five homes and the five septic systems will be clustered within 200 feet of your well. You now have 5x the nitrates coming into the groundwater from those septic systems and depending on the water flows both above and below ground, which you probably don’t know about anyway, those contaminants could be headed straight for your well. And you have no recourse to protect your groundwater except to try to sue the developer or the town. Or maybe your lawyers says you have to wait until your well is contaminated and then spend down your kids’ college fund on legal fees to try to sue the developer or the town.
By the way, if you don’t know about the health impact of nitrates, ask Rebecca Hunnewell, MD, the doctor who drafted the Citizen’s Petition and who cares deeply about the public health of this community. Or read this flyer from the state of Wisconsin and test your well water annually.
Requiring Board of Health to establish regulations that require minimum safe drinking water standards for wells in open space developments will mean that developments will need to be designed so they don’t contaminate their own wells, which should also protect wells nearby.
The second part of the citizen’s petition is the requirement that an Environmental Health Impact Report (EHIR) be part of the developer’s submission. The EHIR gives the board a lot of information about the land, including “sufficient data to demonstrate no deleterious individual or cumulative impact of subsurface sewage disposal upon groundwater quality.” Also the following: a topographical map of the property, with contours referring to Mean Sea Level, showing the location and elevation of all test holes, how the surface drainage is to be handled, including nearby affected areas, and all pertinent physical features, including ponds, swamps, wetlands, water supplies, seasonal watercourses, swales, areas of ledge and rock. Also, where ever applicable, an overlay of Flood Plain, Drainage Watershed areas, USDA Soil Map Characterization for soil type and hydrologic group, USDA Soil Limitations for Septic Tank Sewage Disposal, and Aquifer Designation.
Note that the EHIR requires data about where the water is flowing above ground and the hydrology of the soil. This data helps assess risks to groundwater and nearby wells.
Current Board of Health regulations require EHIRs for developments with 10+ dwellings only. A developer proposing a five house cluster wouldn’t need to provide all this useful data to guide the Board. And providing this information to Boards later in the process could force developers to change their plans after they’ve already gone to quite a bit of expense, assuming that the Board insists on it. So requiring the EHIR up front and for all developments under the Open Source subdivision zoning informs the boards and avoids developer expenses.
Planning Board regulations for subdivisions require a Groundwater Impact Assessment with the applicant’s Definitive Plan (see these regulations, section 3.3.6) and they include “projection of increases in nutrient and contaminant loading resulting from subdivision septic systems (collectively): at well sites within the subdivision, at abutter property lines, at wetlands and their buffer zone boundaries within or adjacent to the subdivision, and at other sensitive receptors.” This is essential information to understand impacts on groundwater. Coupled with the EHIR, with its more detailed data about wetlands, soils and hydrology, the regulatory boards are getting a lot of useful data. What’s missing from Board of Health regulations is standards that guide applicants and the board for modifying or denying projects.
It’s worth noting that at the Advisory Hearing on warrant articles, Sherborn Town Counsel commented that submitting the EHIR environmental assessment with the application for the subdivision (rather than later in the process), as proposed in Article 32, is a good idea.
Wouldn’t it be better and simpler if the Town anticipated these issues and updated the regulations to protect people living in future cluster housing and abutters? This is the purpose of Article 32 - to preserve open space while protecting groundwater and reducing law suits.
At their April 21 meeting, Conservation Commission voted to “support efforts to develop additional regulations such that the Open Space Housing bylaw is more protective of wetlands.” Planning Board and Board of Health have also made statements in support of strengthening their regulations, prompted by Article 32.
There’s a lot to unpack here so I’m posting some more specifics on both Article 32 and the current regulations in an addendum below. Be sure to attend Town Meeting on April 26 to get informed and support measures like this that protect Sherborn groundwater and property values. You can expect to hear criticism of this warrant article, which, frankly, took some boards by surprise. A citizen’s petition is democracy at work!
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ADDENDUM - REGULATORY LANGUAGE
This addendum includes the proposed language and relevant language from current Sherborn bylaws and regulations.
Article 32 language
At Town Meeting, the following language will be proposed for Article 32. The Warrant includes slightly different language in section 4.5.6D. This revised language is a response to input from various Town boards and has been discussed at public hearings before Planning Board and Conservation Commission. The public hearing before Planning Board on April 19 satisfied the requirement that proposed changes to Zoning Board bylaws must have a public hearing before Town Meeting vote.
Section 4.5 Open Space Residential Subdivision
4.5.6. DIMENSIONAL REQUIREMENTS:
D. INFRASTRUCTURE: (page 29)
D. Infrastructure. Board of Health regulations regarding water supply protection and the disposal of wastewater, and Conservation Commission regulations regarding wetland protection, shall apply. Protection of clean water resources will be a primary factor in Planning Board decisions regarding placement of residential units and overall subdivision design.
***INSERT: “Subdivisions with more than one residential unit which are below the Mass Public Water Supply threshold (PWS) will be required to develop protections defined in the Board of Health Regulations for a subdivision, in order to meet safe Drinking Water Standards. (MGL CMR22, Safe Drinking Water Act of 1974)
4.5.10 SUBDIVISION REQUIREMENTS:
2. 4.5.10 Submission Requirements: in order to enable the Planning Board to determine whether or not a proposed Open Space Subdivision (or alternative subdivision development requiring a Special Permit that deviates from the requirements for Open Space Design) satisfies…… Rules and Regulations of the Planning Board, an applicant ***
***INSERT: “must submit an Environmental Impact assessment with the application for a subdivision.”
Current Sherborn Board of Health Regulations (excerpts)
10.0 Distance Requirements
10.1 WELL DISTANCE No leach line, seepage pit or other means of subsurface disposal shall be placed closer than one hundred twenty five (125) feet from any private well or other private source of water supply to be used for drinking purposes or culinary uses. The distance from a well to a sewage disposal system shall be maximized as follows: A. No leaching area shall be less than one hundred twenty five (125) feet from a well located uphill from such leaching area. Town of Sherborn - Board of Health Regulations B. No leaching area shall be less than one hundred fifty (150) feet from a well located downhill from such leaching area. C. When the soil percolation rate is less than three (3) minutes per inch, the distances noted in A and B above shall be increased by a minimum of twenty five (25) feet.
10.3 OTHER DISTANCES All other distance requirements shall be as specified under Title 5 of the State Environmental Code. All distances shall be increased where required by conditions peculiar to a location or by other Town Regulations or By-Laws.
16.0 FILL RESTRICTIONS The filling, dredging or altering of land that is submerged during any portion of the year in order to provide a sufficient area to make it suitable for building purposes shall not be considered acceptable. Such lands (Chapter 131, Section 40 of the Massachusetts General Laws) shall be considered as not suitable for subsurface sewage disposal.
6.0 WELL LOCATION The distance from a well to a sewage disposal system shall be maximized
A. No well shall be less than one hundred twenty five (125) feet from a leaching area located downhill from such well.
B. No well shall be less than one hundred fifty (150) feet from a leaching area located uphill from such well.
C. When the soil percolation rate is less than three (3) minutes per inch, those distances shall be increased by a minimum of twenty five (25) feet.
D. Wells shall be located no less than fifty five (55) feet from the edge of the traveled way or fifty (50) feet from the edge of the right-of-way, whichever is greater. Wells shall be located no less than twenty (20) feet from a driveway. 1.) When protected in a manner approved by the Board of Health, the well may be located no closer than 5 feet from a driveway.
E. Domestic wells shall be located no less than twenty five (25) feet from any lot line, seventy five (75) feet from any adjacent well, ten (10) feet from any building or projection thereof, fifty (50) feet from any part of the subsurface sewage disposal system.
F. Wells used for irrigation purposes shall be located no less than twenty-five (25) feet from any lot line, one hundred fifty (150) feet from any adjacent well, ten (10) feet from any building or projection thereof, fifty (50) feet from any part of the subsurface sewage disposal system.
G. The distance may be increased by the Board of Health when, in its opinion, adverse conditions exist.
7.0 NUMBER OF WELLS There shall be a separate well for each house. The well serving that house shall be located within the lot boundaries of the house site. No well shall be used to supply more than one dwelling (Chapter 40, Section 54 MGL).
10.0 APPROVALS No person shall install or enter into a contract for installing or making additions, modifications or alterations to any private or "semi-public" water supply before submitting complete plans, specifications and descriptions to the Board of Health and receiving from them written approval. Private and "semi-public" water supply systems shall be approved by the Board of Health before occupancy is permitted.
III PUBLIC AND ENVIRONMENTAL HEALTH REVIEW REGULATIONS AND STANDARDS FOR OTHER THAN A SINGLE FAMILY DWELLING ON A SINGLE LOT
3.0 JURISDICTION
3.1 ENVIRONMENTAL HEALTH IMPACT REPORT
The applicant for any proposed project of ten (10) or more dwelling units, whether in a subdivision or on an approved roadway, or any commercial or industrial development with a gross floor area exceeding 7500 square feet, or a design sewage flow of 4400 gallons per day or greater, or any Planned Unit Development (PUD), or any earth removal project exceeding 350 cubic yards of material per lot, or 1000 cubic yards of material per project, shall submit an ENVIRONMENTAL HEALTH IMPACT REPORT (EHIR) to the Board of Health. The report shall meet the criteria required by this and all other applicable Board of Health regulations, and shall provide specific information relative to the operation of the proposed sewage treatment and disposal systems, including soil conditions, surface drainage calculations, hydrogeologic descriptions of groundwater resources and movement, effects of precipitation, and wastewater treatment methodology. The applicant shall also estimate the impact of the project on public and private water supply sources.
3.2 ENVIRONMENTAL HEALTH PERMIT The applicant for any project that meets the criteria stated above shall be required to obtain an ENVIRONMENTAL HEALTH PERMIT from the Board of Health.
3.3 ALL OTHER PROJECTS All other projects within the jurisdiction of the Board of Health and which require approval from the Board of Health shall be required to meet the standards and criteria which are set forth in Sections 8.0, 12.0 and 13.2.
4.0 BURDEN OF PROOF Any applicant required to file an EHIR with the Board shall have the burden of proving by submission of clear and convincing evidence that the proposed work shall not have unacceptable, significant individual or cumulative effect upon the public or environmental health.
7.0 WATER SUPPLY The proposed source of water supply shall provide water of a quantity and quality in accordance with Town, State, and Federal water supply standards for domestic use. In the case of sites to be served by on-site wells, a hydrogeological evaluation showing ground water flow directions and the proposed placement of wells and septic systems. Zones of Contribution to wells shall be delineated except for the following: (a) Single or Two Family Dwellings; (b) Single Family residential subdivisions; or (c) Projects where the required well yield is 1375 gallons per day or less. This evaluation shall be performed by a qualified engineer or geologist, at the expense of the applicant, to be reviewed by the Board of Health for this determination.
8.0 SEWAGE DISPOSAL - The applicant shall submit evidence that: 1. The proposed location of the project has soil conditions suitable for the subsurface disposal of sanitary or other applicable types of wastewaters in accordance with the regulations of the Board of Health along with all applicable state and federal regulations. 2. Wastewater disposal shall meet the strictest minimum standards of current Commonwealth of Massachusetts or Federal regulations of surface or ground waters. For any subdivision having ten (10) or more dwelling lots or any project having a minimum design wastewater flow of 4400 gallons per day, a hydrogeological evaluation shall be performed by a qualified engineer or geologist, at the expense of the applicant, to be reviewed by the Board of Health for this determination. Hydrogeological evaluations shall include determination of geologic stratigraphy, determination of ground water flow directions, determination of maximum ground water elevation, determination of minimum groundwater elevation when relevant, evaluation of water table mounding, and prediction of down-gradient water quality impacts. Maximum ground water elevation shall be determined by direct observation during the season of the year when the water table is high as determined by the Board and as adjusted by the method described in "U.S. Geological Survey, Water Resources Investigations, Open File Report 80-1205 - Probable High Groundwater Levels in Massachusetts", or subsequent revisions thereof.
The Board of Health may, on a case-by-case basis, require that each tenant of a multi-use facility shall have a separate discharge point to the septic system. Each such discharge shall be equipped with a flow meter. Where water usage records will accurately reflect the wastewater discharge, a water usage meter may be acceptable. Otherwise, it will be required to install an effluent or discharge meter.
14.0 ENVIRONMENTAL HEALTH IMPACT REPORT - SCOPE AND GENERAL SUBMITTAL REQUIREMENTS
Plans submitted pursuant to this regulation shall include but not be limited to the following:
1. Proposed Source of Water Supply
2. Data for a sufficient number of test holes, soil logs, maximum ground water elevations, and properly conducted percolation tests to: A. Demonstrate clearly that the soil conditions are generally suitable for subsurface sewage disposal and will meet the needs of the project. In the case of a subdivision, each and every lot shall be shown to be suitable for such purpose. B. To determine the pattern of ground water flow.
3. A topographical map of the property, with contours referring to Mean Sea Level, showing the location and elevation of all test holes, how the surface drainage is to be handled, including nearby affected areas, and all pertinent physical features, including ponds, swamps, wetlands, water supplies, seasonal watercourses, swales, areas of ledge and rock. Also, where ever applicable, an overlay of Flood Plain, Drainage Watershed areas, USDA Soil Map Characterization for soil type and hydrologic group, USDA Soil Limitations for Septic Tank Sewage Disposal, and Aquifer Designation.
4. Sufficient data to demonstrate no deleterious individual or cumulative impact of subsurface sewage disposal upon groundwater quality. Failure to do so may result in findings by the Board of Health that such affected lots cannot be used for building sites without injury to the public health.
5. Hydrologic and hydraulic calculations and data to support the proposed design for the runoff drainage system. Both volume and flow rate of runoff, before and after development, must be clearly stated and shall be in accordance with the specifications previously designated herein. Calculations shall be performed using the most recent procedures of the U.S.D.A. Soil Conservation Service such as are described in TR-20 "Computer Program for Project Formulation-Hydrology" (SCS 1983), National Engineering handbook-Section 4-Hydrology (SCS 1985), and Technical Release No. 55 "Urban Hydrology for Small Watersheds" (SCS 1986). Structure design shall comply with the standards of USDA SCS Publication TR-60 for containments for detention and retention areas. Additional design guidelines may be on file with the Board of Health.
6. Evidence to demonstrate clearly to the Board of Health that water supply shall be adequate as previously designated herein.
7. Evidence to demonstrate clearly to the Board of Health that the effect on ground and surface waters shall be in accordance with the specifications previously designated herein.
8. In order for a plan subject to these regulations to be considered "complete", it shall include all items required by these regulations, including an appropriate fee that may be set from time to time by the Board of Health. Incomplete submittals shall be returned as incomplete forthwith to the applicant, following a vote of disapproval by the Board of Health, without review. The plan must then be resubmitted and be subject to Board of Health review to demonstrate that it meets all Board of Health requirements before it shall be considered approved.
9. Failure to submit adequate or correct data or information as required will constitute grounds for Board of Health denial of the permit for the project site as a whole or of individual lots or portions therein.
SHERBORN PLANNING BOARD
RULES AND REGULATIONS GOVERNING THE SUBDIVISION OF LAND
3.3.6. Groundwater Impact Assessment
Subdivision Rules and Regs 3rd rev. complete 11.16.2020
18 The Board requires that the following be submitted with the Definitive Plan. Such information is necessary to evaluate the plan because of the critical dependence of Sherborn residents on clean groundwater resources, and because each location presents unique hydrogeological circumstances. a. Location of aquifers, recharge areas, or watersheds within and adjacent to the parcel for current or potential drinking water supplies, based on existing, publically-accessible data. b. Maximum (i.e., historic high) groundwater table elevation and estimated direction of groundwater flow. c. Projection of increases in nutrient and contaminant loading resulting from subdivision septic systems (collectively): at well sites within the subdivision, at abutter property lines, at wetlands and their buffer zone boundaries within or adjacent to the subdivision, and at other sensitive receptors. Projections shall be made in accordance with effluent evaluations specified by Environmental Health Impact Report and other requirements of Board of Health Regulations III. d. Analysis of open and closed drainage system alternatives, with projected effects upon the recharge of aquifers and the quality of groundwater and surface water.
3.3.7. Accompanying Documents a. Draft deed to convey the proposed open space parcel(s) to the appropriate entity to hold the fee interest as well as a draft conservation restriction in cases where the fee interest is not proposed to be conveyed to the Town. b. A report in writing certified by a registered professional engineer describing the subsurface conditions within the subdivision, including locations and results of all tests made to ascertain subsurface conditions within the subdivision, and on each proposed lot in the subdivision, provide locations and results of tests made to ascertain subsurface soil, rock and ground water conditions, depth to ground water and locations and results of all soil percolation tests conducted in accordance with the requirements of the Board of Health; c. A statement in writing, signed by the Applicant and by the engineer and surveyor preparing the Definitive Plan, describing in detail any recent or contemplated filling, excavation, relocation or removal of earth, (including, but not limited to soil, loam, sand, clay or gravel) within the subdivision. With respect to each such filling or removal operation within the subdivision, including all filling, cutting and grading required in the construction of the subdivision streets and ways, the statement shall indicate, by reference to the definitive survey and profile plans, the approximate perimeter of the area affected thereby, the approximate amount of earth to be placed, relocated or removed and the changes in elevation resulting therefrom. Specific explanation is required on any fill to be added, if removal is also proposed, and such fill shall be clean fill and subject to review by the Planning Board or its agent
