310 Mass. Reg. 36.03

Current through Register 1523, June 7, 2024

Section 36.03 - Definitions

As used in 310 CMR 36.00, the following terms shall have the following meanings:

Abutter means an owner of land that shares a common boundary or corner with the parcel of land on which a proposed withdrawal is located, including land located directly across a street, road or way. Determination of ownership and common boundary shall be made with reference to the current local tax assessors' records and maps. A street, road or way is not an abutter.

Abutter of Abutter means the owner of a parcel of land that shares a common boundary or corner with land owned by an abutter, including land located directly across a street, road or way. Determination of ownership and common boundary shall be made with reference to the current local tax assessors' records and maps. A street, road or way is not an abutter of abutter. Railroad rights-of-way shall receive notice as abutters or abutters of abutters, but are not abutters for the purpose of determining abutters of abutters.

Act means the Massachusetts Water Management Act, M.G.L. c. 21G.

Annual Statement of Withdrawal means a report filed on a form provided by the Department in accordance with 310 CMR 36.00 stating the volume of raw water withdrawn during the prior year and any other information required by the Department pursuant to a registration statement or permit.

Aquifer means a geologic formation, group of formations or part of a formation that is capable of yielding a significant amount of water, as determined by the Department.

August Median Flow means the median of the August median flows for the period of record described by the U.S. Geological Survey in Indicators of Streamflow Alteration, Habitat Fragmentation, Impervious Cover, and Water Quality for Massachusetts Stream Basins (Weiskel et al., 2010, USGS SIR 2009-5272).

August Net Groundwater Depletion means the unimpacted median monthly flow for August minus 2000-2004 groundwater withdrawals plus 2000-2004 groundwater returns described by the U.S. Geological Survey in Indicators of Streamflow Alteration, Habitat Fragmentation, Impervious Cover, and Water Quality for Massachusetts Stream Basins (Weiskel et al., 2010, USGS SIR 2009-5272).

Authorized Withdrawal means:

(a) that volume of water that is registered, permitted or both; or

(b) that volume of water for which a nonconsumptive use statement has been accepted by the Department.

(c) The volume of an authorized withdrawal in a registration statement or permit is expressed as an annual average daily volume calculated by dividing the total annual withdrawal by the number of days of operation during the year.

Baseline means the volume of water withdrawn during calendar year 2005 plus 5%, or the average annual volume withdrawn from 2003 through 2005 plus 5%, whichever is greater, provided that:

(a) baseline cannot be less than a permittee's registered volume;

(b) baseline cannot be greater than the permitee's authorized volume for 2005; and

(c) if, during the period from 2003 to 2005, the permittee's withdrawals from the water source were interrupted due to contamination of the source or construction of a treatment plant, the Department will use best available data to establish a baseline volume from the water source.

For permittees with withdrawals in only one water source, baseline will be calculated for the withdrawals in that water source. For permittees with withdrawals in more than one water source, the Department will calculate a separate baseline for withdrawals from each water source, and a system-wide baseline based on the volume of water withdrawn from all water sources, using the methodology outlined above.

Biological Category is defined at 310 CMR 36.14(1)(a).

Bioperiod means specified periods during the year that correspond to fish life stages or critical biological processes (e.g., spawning, incubation, rearing, growth, migration, overwintering) based on Characteristics and Classifications of Least Altered Streamflows in Massachusetts (Armstrong et al., 2008, USGS SIR 2007-5291).

Coldwater Fish Resources means waters that the MA Division of Fisheries and Wildlife has identified support cold water fish.

Commission means the Water Resources Commission of the Executive Office of Energy and Environmental Affairs.

Commissioner means the Commissioner of the Department of Environmental Protection.

Department means the Department of Environmental Protection.

EOEEA Agencies means the MA Executive Office of Energy and Environmental Affairs (EOEEA), the Department of Fish and Game and the Department of Conservation and Recreation.

Existing Withdrawal means the average volume of water withdrawn from a particular water source between January 1, 1981 and December 31, 1985 provided:

(a) That if, during such period of five years, withdrawals were interrupted due to contamination of the water source, the periods of such interruptions were excluded pro rata from the computation of existing withdrawal;

(b) That a registration statement was filed with the Department in accordance with M.G.L. c. 21G, §§ 5 and 6, and 310 CMR 36.04 and 36.06, and has been renewed and maintained in accordance with 310 CMR 36.07 through 36.10; and

(c) That an annual statement of withdrawal has been filed with the Department in accordance with 310 CMR 36.11.

Feasible means capable of implementation taking into consideration the anticipated environmental improvement, cost, available technology and the permittee's legal authority to implement the alternative or action.

Firm Yield means a simulated estimate of the water volume available in a reservoir or reservoir system during drought conditions, as approved by the Department. Firm yield is determined using the response of the reservoir to the drought of record. If the applicant has a drought management plan that details specific steps to be taken in response to droughts and the means to measure results, the Department will consider the response of the source(s) to the best approximation of a one-in-20 year drought. The reservoir system's firm yield derived from this analysis will then become the basis for permitting maximum annual withdrawals from the reservoir(s).

Fluvial Fish means fish living in a stream or river that are dependent upon flow during one or more stages in their life cycle.

Groundwater Withdrawal Category is defined at 310 CMR 36.14(1)(b).

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, implemented by 301 CMR 11.00: MEPA Regulations.

Minimization means measures that reduce withdrawals from, or return groundwater to, the subbasin or river basin from which a withdrawal is made, or other management measures intended to improve streamflow.

Mitigation means activities undertaken that offset the impacts of ground or surface water withdrawals by improving streamflow or aquatic habitat.

Multi-Year Drought Storage means a registrant's reservoir capacity, as determined by the Department, of not less than two times the sum of a registrant's authorized withdrawal and any required reservoir release established by statute, regulation, permit or other approval issued by a state or federal agency. Multi-Year Drought Storage does not include the volume of water below intake elevations.

New Withdrawal means any withdrawal of water that is not authorized by a registration.

Nonconsumptive Use means any use of water which results in its being discharged back into the same water source at or near the withdrawal point in substantially unimpaired quality and quantity.

Nonconsumptive Use Notification Statement means a report filed with and approved in writing by the Department, describing the volume of water withdrawn and demonstrating that the use is nonconsumptive.

Nonessential Outdoor Water Use means a use that is not required:

(a) for health or safety reasons, including public facilities used for cooling such as splash pads and swimming pools, and for washing of boats, engines, or marine equipment to prevent negative saltwater impacts or the transfer of invasive aquatic species;

(b) by permit, license, statute or regulation;

(c) for the production of food, including vegetable gardens, and fiber;

(d) for the maintenance of livestock;

(e) to meet the core functions (those functions essential to the commercial operations) of a business, including but not limited to:

1. plant nurseries as necessary to maintain stock;

2. golf courses as necessary to maintain greens and tees, and limited fairway watering per 310 CMR 36.07(2)(c)2.a. through c.;

3. venues used for weddings or similar special events that limit watering to hand-held hose or drip irrigation as necessary to maintain gardens, flowers and ornamental plants;

4. professional washing of exterior building surfaces, parking lots, driveways and/or sidewalks as necessary to apply surface treatments such as paint, preservatives, stucco, pavement, or cement in the course of construction, reconstruction or renovation work;

(f) for irrigation of public parks before 9:00 A.M. and after 5:00 P.M.,

(g) for irrigation of public and private recreation fields, including those operated by schools, colleges, universities and athletic associations, before 9:00 A.M. and after 5:00 P.M.,

(h) for irrigation of publicly-funded shade trees and trees in the public right-of-way; or

(i) to establish a new lawn as necessary to stabilize soil in response to new construction or following the repair or replacement of a Title 5 system.

Permit means a permit issued by the Department under M.G.L. c. 21G, § 7, authorizing a new withdrawal.

Permit Tier means a tier to which a permit application is assigned based on the size of the requested withdrawal volume relative to the applicant's baseline, and the potential for any increase in withdrawal above the applicant's baseline to contribute to a change in the biological category or groundwater withdrawal category of the subbasin(s) from which the withdrawal is made.

Person means any agency, district, or political subdivision of the federal government or the Commonwealth, any state, public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association, or other entity, and any officer, employee or agent of said person, and any group of said persons.

Public Water Supplier means a person that operates a public water system.

Public Water System means a system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days of the year.

Q₉₀ means a statistical flow value that is exceeded 90% of the time over the period of record. The annualized Q₉₀ flow is the mean of the monthly Q₉₀ flows.

Raw Water means water that is withdrawn from a source prior to treatment or distribution.

Redundant Well means a well/wellfield constructed after November 7, 2014, and used only to withdraw groundwater pursuant to a registration, provided:

(a) that is constructed to address a public health and safety concern or provide a net environmental benefit;

(b) that is located within the same Natural Resources Conservation Service Hydrologic Unit Code 12-digit Scale Watershed (HUC-12) as the original source in the registration; and

(c) that withdrawals from which, in combination with withdrawals from the withdrawer's registered wells/wellfields within the HUC-12, shall not exceed the annual average withdrawals for the three years prior to filing a permit application for the redundant well.

Registrant means any person who holds a registration statement accepted by the Department and maintains the registration statement in accordance with 310 CMR 36.07 through 36.11, including a voluntary registration statement.

Registration Statement means a renewable statement of an existing withdrawal filed on or before January 1, 1988 with the Department in accordance with M.G.L. c. 21G, § 5, and 310 CMR 36.06, and renewed and maintained in accordance with 310 CMR 36.07 through 36.11.

Replacement Well means a new well(s)/wellfield installed to replace or supplement an approved well(s)/wellfield where the proposed new well(s)/wellfield will be situated within 250 feet of the original well(s)/wellfield and have a pumping rate equal to or less than that of the original well(s)/wellfield. Replacement wells must be installed in the same unconsolidated geologic formation as the original approved well(s)/wellfield. Criteria used to determine the location of replacement wells shall include but not be limited to the following: the extent to which negative environmental impacts caused by the existing well can be minimized; the degree to which replacement wells alter the existing groundwater hydraulics or Zone II boundaries; and the degree to which significant potential contamination threats can be lessened. Replacement wells shall not significantly alter the existing groundwater hydraulics or Zone II boundaries. Replacement wells are subject to the new source approval requirements as set forth in 310 CMR 22.00: Drinking Water.

For the purposes of M.G.L. c. 21G and 310 CMR 36.00, a well will only be considered to be a replacement well if the total water produced by the original source and all its replacement sources does not exceed the approved pumping rate of the original source.

Safe Yield means the maximum dependable withdrawals that can be made continuously from a water source including ground or surface water during a period of years in which the probable driest period or period of greatest water deficiency is likely to occur; provided, however, that such dependability is relative and is a function of storage and drought probability. The Department's method for calculating and applying safe yield is described at 310 CMR 36.13.

Seasonal Groundwater Withdrawal Category is defined at 310 CMR 36.14(1)(c).

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

Streamflow Criteria are defined at 310 CMR 36.14.

Subbasin means the 1,395 subbasins delineated by the U.S. Geological Survey in Indicators of Streamflow Alteration, Habitat Fragmentation, Impervious Cover, and Water Quality for Massachusetts Stream Basins (Weiskel et al., 2010, USGS SIR 2009-5272), unless otherwise specifically provided.

Threshold Volume means an average daily withdrawal volume of 100,000 gallons for any period of three consecutive months, from a total withdrawal of not less than 9,000,000 gallons.

Unimpacted Median Monthly Flow means the estimated near natural median monthly streamflow over a simulated 44-year period generated by The Massachusetts Sustainable Yield Estimator: A decision support tool to assess water availability at ungaged stream locations in Massachusetts (Archfield et al., 2009, USGS SIR 2009-5227).

Voluntary Registration Statement means a renewable statement of an existing withdrawal below the threshold volume, but in excess of 10,000 gallons per day, from a single water source, filed on or before July 1, 1991 with the Department in accordance with M.G.L. c. 21G, § 5, and 310 CMR 36.06, and renewed and maintained in accordance with 310 CMR 36.07 through 36.11.

Water means all water beneath or on the surface of the ground whether wholly or partly within the Commonwealth.

Water Resources Management Official means the local official, designated by the chief elected official within a city or town, or the chief elected official in that city or town if no water resources management official has been designated, responsible for submitting and administering the water resources management plan in that city or town.

Water Resources Management Plan means:

(a) a local plan to meet water needs within a city or town, developed pursuant to planning guidance issued by the Commission, submitted by the water resources management official to the Commission, and approved by the Commission; or

(b) absent planning guidance from the Commission, a local plan to meet water needs within a city or town deemed complete by the Commission.

Water Source means any natural or artificial aquifer or body of surface water, including its watershed where ground and surface water are interconnected in a single hydrological system. For the purposes of 310 CMR 36.00, water sources are the river basins delineated by the Commission at 313 CMR 4.03: Delineation of River Basins.

Water Supply Emergency Plan means a plan prepared by a public water supplier in accordance with 310 CMR 36.40(5).

Well means a bored, drilled, or driven shaft, or a dug hole, whose depth is greater than its largest surface diameter.

Withdrawal Point means any well or intake structure used to withdraw water from a water source.

Withdrawal or Withdrawal of Water means the removal or taking of water for any purpose from a water source.

310 CMR 36.03

Amended by Mass Register Issue 1273, eff. 11/7/2014.

Amended by Mass Register Issue 1487, eff. 1/20/2023.