3. Authority and Applicability

Purpose:

To establish local government (or an authorized jurisdiction's) authority and responsibility to manage and otherwise regulate wellhead protection areas, aquifers, and groundwater resources.

Key Issues:

• Refer or cite enabling legislation.
• Include references to any adopted map that defines the delineated boundaries.
• Make clear the duties and make up of any special citizen's review board or commission.
• Identify the authority and responsibility of appointed officials, such as the zoning administrator, planning director, water or public works director.
• Include a standard statement of abrogation and greater restrictions.
• Include a standard statement of severability.

Notes:

Refer or cite the relevant federal and State enabling legislation along with local ordinances to establish the authority to regulate and the applicability of wellhead protection to protect groundwater. This section should include references to State statutes, areas of the jurisdiction where such statutes are applicable, and a general description of boundaries or reference to an adopted map of the boundaries. Contact your local government's legal counsel for identifying such statutes and legal descriptions. Legal counsels are Law Directors, Commonwealth Attorney's, Town Counsel, etc. Also contact the appropriate State environmental agency, other communities who have adopted similar ordinances, and health officials.

Whereas, Article 1175, Subdivision 19 of the Texas Revised Civil Statutes states in pertinent part that a city has the power to prohibit the pollution of any streams, drain, or tributaries thereof, which may constitute the source of water supply of any city and to provide policing of same as well as to provide for the protection of any watersheds...
[City of Sweeny, Texas, General Ordinance, Section A, 1990]

This Ordinance applies to all land uses and activities located or proposed within the area delineated as the Wellhead Protection Area in Norway on a map available for inspection at the office of the Norway Water District and as defined in the definitions section of the ordinance. The Wellhead Protection Area consists of WHPA 1, WHPA 2, and WHPA 3, described below, for the Norway municipal well(s).
[Town of Norway, Maine, Wellhead Protection Ordinance, Section B, 1993]

When special committees are appointed to review provisions and make recommendations to the planning commission or the elected body, a reference to their role and authority should also be included here. Describe the composition of the body and its role in the review, revision, and interpretation of wellhead protection provisions of the zoning ordinance.

(a) A Resource Protection Area Technical Advisory Committee ("RPATAC") is hereby established in the New Castle county Department of Planning composed of one (1) representative from each of the following:

Chemical Industry
Consulting Engineers Council
DNREC
Delaware Department of Health and Social Services, Division of Public Health
Delaware Geological Survey
New Castle County Chamber of Commerce
New Castle County Department of Planning
New Castle County Department of Public Works
Water Company Representative
Water Resources Agency of New Castle County

The members shall be appointed by the County Executive. The members shall be appointed to four (4) year terms, except that initially four (4) members shall be appointed for a two (2) year term, three (3) members shall be appointed for a three (3) year term; and three(3) members shall be appointed for a four (4) year term. They may be reappointed and shall serve until their successor is appointed. The chairman shall be designated by the County Executive.

(b) the purposes and duties of the RPATAC are to:

1. Provide technical support and recommendations to the Department of Planning concerning the technical definition and criteria of any Resource Protection Area as depicted on the three-map series designated in Section 23-123.
2. Advise the Department of Planning when the RPATAC determines that performance standards should be amended.
3. Provide technical support and recommendations to the Board of Adjustment concerning any application made to that Board.
4. Advise the Department of Planning when the RPATAC determines that this Article or any regulations promulgated pursuant to this Article should be amended.
5. Assist the Department of Planning as requested.

[New Castle County, Delaware, Zoning Ordinance, Section 23-138 and 23-139, proposed]

A committee shall be established to assist in the interpretation of and/or revision of boundaries established in this article, the review of development plans within wellhead resources and recharge protection areas, and other related matters that may arise in the administration of this article. The committee shall consist of representatives from the Newark Planning and Water and Waste Water Departments, the Delaware Geological Survey, the Delaware Department of Natural Resources and Environmental Control, the Soil Conservation Service, and the Water Resources Agency for New Castle County. The committee shall be chaired by the Newark Director of Water and Waste Water and shall be convened by the director when, in the director's opinion, technical advice is necessary for the administration of this article as described herein. The committee shall be advisory only; all final determinations shall be made by the Water and Waste Water Director.
[City of Newark, Delaware, Zoning Ordinance, Section 30-53.d, 1991]

The City of Rockdale's Water and Sewer Superintendent is hereby appointed the wellhead protection area administrator to administer and implement the provisions of this ordinance and other appropriate sections of (Wellhead Protection Ordinance) of the Texas Water Code.
[City of Rockdale, Texas, Wellhead Protection Ordinance, Article 4, Section 1, 1991]

A standard statement of responsibility of appointed local officials, such as the Planning Director, the Zoning Administrator, and other officials should be included and or amended as necessary.

The Board of Adjustment shall not consider any application for a variance from the provisions of this Article until the RPATAC (Resource Protection Area Technical Advisory Committee) has had an opportunity to review the application and make a written recommendation to the Board of Adjustment. Any application for a variance from this Article shall be transmitted to the RPATAC, which shall have forty-five (45) working days from the filing of the application to review and issue its recommendations. The application shall be advertised for public hearing for the next regularly scheduled Board of Adjustment meeting following the expiration of the forty-five (45) day -period.
[New Castle County, Delaware, Zoning Ordinance, Section 23-138 and 23-139, proposed]

These are some additional standard statements pertaining to the authority and applicability that are not necessary if such responsibilities are defined in other parts of the zoning ordinance.

Nothing contained in (the Wellhead Protection sections of the zoning ordinance shall be construed so as to interfere with the duties and powers of the Director of Water as set forth in Section 50.42 of the R.C.G.O.
[City of Dayton, Ohio, Zoning Ordinance, Section 53.01.B(3), 1988]

It shall be the responsibility of any person owning real property and/or owning or operating a business within the City of Dayton corporate limits to make a determination of the applicability of (Well Head and Well field Protection districts) as it pertains to the property and/or business under his ownership or operation, and his failure to do so shall not excuse any violations of said sections.
[City of Dayton, Ohio, Zoning Ordinance, Section 53.01.I, 1988]

A standard statement of abrogation and greater restrictions is appropriate at the end of this section of the ordinance, if none exists in the zoning ordinance.

It is not intended by this Article to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this Article imposes greater restrictions, the provisions of this Article shall prevail.
[City of East Marlborough Township, Pennsylvania, Zoning Ordinance, Section 1204A.5, 1979]

Nothing contained in (the Wellhead Protection Ordinance) shall be construed so as to interfere with any existing or future lawful requirements that may be, or heretofore were, imposed by any other public body authorized to enact sanitary, health, or water pollution abatement restrictions so long as such requirements are consistent with, or more stringent than, the stated purpose of this ordinance.
[City of Dayton, Ohio, Zoning Ordinance, Section 53.01.B(2), 1988]

Often, zoning ordinances include a severability clause. If the courts strike down part of an ordinance, a severability clause allows the community to continue enforcing other portions of this ordinance without invalidating the whole. Although this is a standard clause that is usually put in a general provisions section of the zoning ordinance, making it applicable to the entire zoning ordinance, it is also repeated in most major chapters or articles of the ordinance.

Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole or any part thereof other than the part held to be invalid.
[Authors' recommended language]

Communities that have experienced incidents of contamination and significant violations of the provisions of their ordinance have sometimes chosen to include statements of injunctive relief. Although the right to file for such relief in courts is available whether or not such a statement is explicitly stated in the ordinance, reiterating such rights in the ordinance acts as an added deterrence.

If any person who engages in nonresidential activities stores, handles, uses, and/or produces toxic substances listed in Table 1 (Toxic Substances List) within the well field zones of influence, as indicated on the Zone of Influence maps, without having obtained a permit as provided for herein or continues to operate in violation of the provisions of this ordinance, then Broward County may file an action for injunctive relief in the circuit court...
[Broward County, Florida, Well Field Protection Ordinance, Section 11.01, 1989]

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Wellhead Protection Program Guidance Document Contents
Wyoming Department of Environmental Quality