Section 22.20C - Surface Water Supply Protection for New and Expanded Class A Surface Water Sources(1)Source Approval.(a) A public water system shall obtain prior written approval of the Department for:1. the development of a new surface water source;2. the physical expansion of an existing surface water source or the replacement or modification of an existing intake structure;3. any increase in withdrawal from an existing surface water source in excess of the permitted threshold volume as defined in 310 CMR 36.00: Massachusetts Water Resources Management Program; or4. placing an existing unapproved or inactive surface water on-line.(b) Persons seeking Department approval for any of the activities described in 310 CMR 22.20C(1)(a) are required to follow the procedures set forth in the "Guidelines and Policies for Public Water System".(c) In determining whether to grant such approval, the Department will apply the criteria set forth in 310 CMR 22.20C and the Guidelines and Policies for Public Water Systems.(d) The Department will not grant its approval pursuant to 310 CMR 22.20C(1), unless the public water system demonstrates to the Department's satisfaction that the system:1. complies with the applicable Guidelines and Policies for Public Water Systems;2. meets all applicable water quality standards set forth in 310 CMR 22.00, and will meet the requirements of 310 CMR 22.20A through 22.20C;3. has delineated and mapped Zones A, B and C of the proposed surface water source and provided a map depicting existing land uses existing within Zones A, B and C;4. has developed a Surface Water Supply Protection Plan in accordance with the Department's Guidelines and Policies for Public Water Systems and Developing a Local Surface Water Supply Protection Plan (revised May 2000), which shall be updated by the public water system, with a copy submitted to the Department, every three years thereafter; and5. has developed a reservoir and watershed public control plan, to specify allowable and non-allowable uses on existing public surface water sources and within adjacent public surface water supplier-owned lands at new and existing sources, and contains provisions for public education, inspection, and enforcement;6. obtain a permit or permit amendment for any withdrawal, in accordance with the Water Management Act, M.G.L. c. 21G, and 310 CMR 36.00: Massachusetts Water Resources Management Program.(e)Municipal Source.1. No new municipal surface water source, or physical expansion of an existing surface water source shall be placed on line or allowed to expand, unless: a. For those portions of Zone A that are within the municipal boundaries, has adopted and has in effect surface water protection zoning or nonzoning controls that prohibit siting within the Zone A of each source the land uses set forth in 310 CMR 22.20C(2) unless the land uses are designed in accordance with the performance standards specified in 310 CMR 22.20C(2); andb. Those portions of Zone A that are outside of the municipal boundaries have zoning or nonzoning controls in effect that prohibit the siting within Zone A of land uses set forth in 310 CMR 22.20C(2) unless the land uses are designed in accordance with the performance standards specified in 310 CMR 22.20C(2), or the municipal supplier of water demonstrates to the Department's satisfaction that it has used best efforts to have such zoning or nonzoning controls adopted and in effect; andc. the municipality has submitted to the Department a copy of the adopted zoning or nonzoning controls, if any, including any local legislation that provides a variance, waiver or exemption process related to surface water protection zoning and nonzoning controls applicable to the Zone A of the municipal source.2. An owner or operator of a municipal surface water source that will increase its withdrawal of water by more than the threshold volume, as defined in 310 CMR 36.00: Massachusetts Water Resources Management Program, shall, within two years of the effective date of a Water Management Act permit or permit amendment that authorizes the increase: a. For those portions in the Zone A that are within the municipal boundaries, adopt and have in effect surface water protection zoning or nonzoning controls that prohibit siting within the Zone A of the source the land uses set forth in 310 CMR 22.20C(2), unless the land uses are designed in accordance with the performance standards specified in 310 CMR 22.20C(2); andb. for those portions of the Zone A that are outside of the municipal boundaries have zoning or nonzoning controls in effect that prohibit the siting within Zone A of land uses set forth in 310 CMR 22.20C(2) unless the land uses are designed in accordance with performance standards specified in 310 CMR 22.20C(2), or the municipal supplier of water demonstrates to the Department's satisfaction that it has used best efforts to have such zoning or nonzoning controls adopted and in effect; andc. submit to the department a copy of the zoning or nonzoning controls in effect and any local legislation that provides a variance or exemption process related the surface water protection zoning and nonzoning controls.(f)Non-municipal Sources. No new surface water source, or existing surface water source physically expanding that will be used in a non-municipal public water system owned or operated by a non-municipal entity shall be placed on-line or allowed to expand until the public water system has demonstrated to the Department's satisfaction that it has used its best efforts to have all municipalities in which Zone A of the surface water source is located establish zoning or nonzoning controls that prohibit siting within Zone A the land uses set forth in 310 CMR 22.20C(2), unless the land uses are designed in accordance with the performance standards specified in 310 CMR 22.02C(2). An owner or operator of a non-municipal surface water source that will increase its withdrawal of water by more than the threshold volume, as defined in 310 CMR 36.00: Massachusetts Water Resources Management Program, shall, within two years of the effective date of a Water Management Act permit or permit amendment that authorizes the increase, meet these same best effort requirements.(g) The proponent may meet the requirements set forth in 310 CMR 22.20C(1)(e) and 310 CMR 22.20C(1)(f) by demonstrating that the water supplier has acquired land for water supply purposes or the existing rights in perpetuity or for a specific period of years stated in the form of a restriction, easement, covenant or condition in a deed or other instrument, or other mechanism approved by the Department, prohibiting the siting within Zone A of the land uses set forth in 310 CMR 22.20C(2).(h)Amendment or Repeal of Zoning/Nonzoning Controls. No public water system surface water source shall remain on-line more than 120 days following the amendment or repeal of surface water protection zoning or nonzoning controls protecting that surface water source, or the expiration of any rights stated in a deed or other instrument approved pursuant to 310 CMR 22.20C(1)(g), unless the Department finds in writing that the water supplier meets the requirements set forth in 310 CMR 22.20C(1)(e) or (f), whichever is applicable, or grants a variance in accordance with 310 CMR 22.20C(3).(i)Water Supply Emergency. The Department may exempt a water supplier from any of the requirements set forth in 310 CMR 22.20C(1) while a declaration of a state of water supply emergency pursuant to M.G.L. c. 21G is in effect. In the event that the Department declares a state of water supply emergency, the surface water source shall operate, for the duration of the state of water supply emergency, as directed by the Department.(2)Restricted Activities upon Surface Water Sources and Within Protection Zones. Required Surface Water Protection Controls Applicable to Zone A: Surface water protection zoning and nonzoning controls submitted to the Department in accordance with 310 CMR 22.20C(1), shall collectively prohibit the siting of the following new land uses within Zone A:(a) land uses described in 310 CMR 22.20B(2);(b) facilities that, through their acts or processes, generate, treat, store or dispose of hazardous waste that are subject to M.G.L. c. 21C and 310 CMR 30.000: Hazardous Waste, except for the following:1. very small quantity generators, as defined by 310 CMR 30.000: Hazardous Waste;2. treatment works approved by the Department designed in accordance with 314 CMR 5.00: Ground Water Discharge Permit Program for the treatment of contaminated ground or surface waters;(c) sand and gravel excavation operations;(d) uncovered or uncontained storage of fertilizers;(e) uncovered or uncontained storage of road or parking lot de-icing and sanding materials;(f) storage or disposal of snow or ice, removed from highways and streets outside the Zone A, that contains deicing chemicals;(g) uncovered or uncontained storage of manure;(h) junk and salvage operations;(i) motor vehicle repair operations;(j) cemeteries (human and animal) and mausoleums;(k) solid waste combustion facilities or handling facilities as defined at 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities; (l) land uses that result in the rendering impervious of more than 15%, or more than 20% with artificial recharge, or 2500 square feet of any lot, whichever is greater; and (m) commercial outdoor washing of vehicles, commercial car washes.(3)Department Variances.(a) The Department may grant a variance from the requirements of 310 CMR 22.20C(1)(f) to a proponent that, despite its best efforts, is unable to adopt one or more of the requirements set forth in 310 CMR 22.20C(2) if the Department finds that strict compliance with such requirements would result in an undue hardship and would not serve to further the intent of 310 CMR 22.20A through 22.20C.(b) The Department will consider the following factors in making the finding necessary to grant a variance pursuant to 310 CMR 22.20C(3):1. the reasonableness of available alternatives to the proposed surface water source;2. the overall effectiveness of existing land use controls and other measures on the protection of the proposed surface water source and any other water sources used by the supplier of water;3. the nature and extent of the risk of contamination to the proposed surface water source that would result from the granting of the variance; and4. whether the variance is necessary to accommodate an overriding community, regional, state, or national public interest;5. These factors need not be weighed equally, nor must all of these factors be present for the Department to grant a variance. The presence of any single factor may be sufficient for the granting of a variance.(c) A variance granted pursuant to 310 CMR 22.20C(3) shall be conditioned on such monitoring, public education or other requirements as the Department may prescribe.(d) Requests for variances shall be made in writing and clearly state the provision or requirement from which the variance is sought and the reasons and facts that support the granting of a variance, and shall include an evaluation of the reasonableness of alternatives to the proposed surface water source.(e) Within 14 days of filing a request for variance under 310 CMR 22.20C(3)(a), the proponent filing the request shall notify persons served by the supplier of water by direct mail and by publication on not less than three consecutive days in a newspaper of general circulation in the service area of the supplier of water. The notice shall include:1. the provision or requirement from which the variance is being sought;2. the identity of the proponent of the surface water source;3. the identity of the person requesting the variance, the address where a copy of the request for variance will be available for public inspection, and the times it will be available; and4. a statement that the Department will receive written comments concerning the request from the public for a 30 day period commencing on the last date of newspaper publication.(f) Each proponent submitting a request for variance shall submit to the Department a copy of the public notice required by 310 CMR 22.20C(3)(e) and affidavits attesting to the fact that the notices have been given. The Department will receive written comments concerning the request from the public for a 30-day period commencing on the last date of newspaper publication.(g) Within 30 days of the close of the comment period, each proponent requesting a variance under 310 CMR 22.20C(3)(a) shall respond in writing to all reasonable public comments received by the Department.(h) The Department may schedule a public hearing on any request for variance submitted in accordance with 310 CMR 22.20C(3) if it determines on the basis of the public comments received that such a hearing is in the public interest. In the event that the Department schedules a hearing, the proponent filing the request shall notify persons served by the supplier of water of the hearing by publication on not less than three consecutive days in a newspaper of general circulation in the service area of the supplier of water. In addition, the proponent filing the request shall notify each person who submitted written comment concerning the request to the Department by direct mail. The proponent filing the request shall submit to the Department a copy of the public notices required by 310 CMR 22.20C(3)(h), and an affidavit attesting to the fact that the notices have been given, prior to the hearing. Proponents filing a request for a variance under 310 CMR 22.20C(3) shall pay in full the cost of any hearing scheduled.(i) Within 30 days of the grant of a variance under 310 CMR 22.20C(3), any proponent who receives a variance shall notify persons served by the supplier of water of the granting of the variance, including any conditions imposed by the Department, by direct mail and by publication on not less than three consecutive days in a newspaper of general circulation in the service area of the supplier of water. The proponent who receives the variance shall submit to the Department a copy of the public notices and an affidavit attesting to the fact that the notices have been given upon completion of the public notification.Amended by Mass Register Issue 1309, eff. 3/25/2016.