Land Use Planning Information>Groundwater Protection

Planning and Zoning for Groundwater Protection
Click here to view full size picture The following is excerpted from the book Community Planning & Zoning for Groundwater Protection in Michigan - A Guidebook for Local Officials. This book was written by Lillian F. Dean and Mark A. Wyckoff for the Office of Water Resources, Michigan Department of Natural Resources.

The Guidebook was printed by the Michigan Society of Planning Officials (MSPO) with the funding assistance of the W.K. Kellogg Foundation under the Groundwater Education in Michigan (GEM) program. MSPO has used Guidebook as a valuable reference in their courses for planning and zoning officials.
Local Control Over Groundwater Resources
Land Use and Groundwater
Best Management Practices
The Legal Basis for Protection
Zoning Option 1: Link to Other Permits
Zoning Option 2: Site Plan Review
Zoning Option 3: Overlay Zone
Zoning Option 4: Hazardous Substance Control Ordinance
Zoning Option 5: Regional Interjurisdictional Permit Program

Local Control Over Groundwater Resources

Local governments have broad legal authority to plan and regulate to protect groundwater in their community. Local leadership and involvement in groundwater protection is essential for assuring the administration of consistent protection standards for all land uses of concern.

Under Michigan law, past and present owners and operators of a facility, as well as generators and transporters of hazardous waste, are considered liable for environmental contamination. A potential buyer's only means of avoiding liability may be to closely scrutinize the property prior to purchase. By helping to avoid new sources of contamination, local governments provide a service which benefits present and future property owners.

State agency regulatory standards apply to certain types of land uses. When site plans for new developments are reviewed in accordance with local zoning ordinances, proposals can be reviewed for consistency with state standards. Local governments can also adopt zoning ordinance standards which require groundwater protection measures for land uses and activities not regulated through state programs.

Some local programs may be directed toward gaps in the state and county regulatory framework. Many communities, however, will favor a comprehensive approach which involves coordination with state and county programs.

A clear identification of the purpose of local groundwater protection is an essential first step in building local leadership. Communities may be concerned about groundwater protection even though they do not drink groundwater. Soil contamination prevents economic development, even if no groundwater is polluted. However, the fact that many Michigan communities depend on groundwater for drinking and the recognition that groundwater helps to maintain valuable lakes, streams and wetlands are the most compelling reasons for local government action.
Municipal wellhead protection programs often start with a focus on protection of lands surrounding public drinking water supplies. They may be broadened to encompass other local community goals, such as comprehensive water quality protection throughout the community.

Tools and techniques which are expected to be useful for local wellhead protection programs include:

* Zoning ordinance revisions
* Occupancy permit requirements for new uses
* Building and fire safety inspections
* Groundwater compliance inspections
* Land use planning
* Public education programs
* Public information about government requirements and legal liability for contamination
* Purchase of land vulnerable to contamination
* Environmental audits and operational plans for municipal
facilities, such as vehicle maintenance garages
* Public information to encourage the use of nonhazardous solvents for automotive operations

Communities have four options for groundwater protection goals. These choices for groundwater protection goals can be arranged in a pyramid, reflecting the fact that several can be embraced together:

1. Public drinking water supply protection: Protection of the land area which potentially contributes contaminants to public drinking water supply wells.

2. Drinking water supply protection: Protection of aquifers in the community which are used for drinking water.

3. Comprehensive groundwater protection: Protection of groundwater for a wide variety of uses.

4. Comprehensive water quality protection: Protection of lakes, streams, and wetlands (e.g., surface waters) as well as groundwater.

Land Use and Groundwater

Common land use activities such as manufacturing, laundry and dry cleaning services, paint mixing, golf courses with vehicle maintenance shops, automotive sales and repair shops, furniture stripping and repair, agricultural operations, oil and gas drilling, and many other uses can pose threats to groundwater. Land uses such as these use, store, or manufacture hazardous substances which may leak or spill onto soils or seep into groundwater.

Hazardous substances are found in thousands of small and large businesses throughout Michigan. The large number and diversity of establishments using or storing hazardous substances makes the task of equitable and effective government regulation a challenging task.

Land uses which pose very high risks to Michigan's groundwater include the following:
* Petroleum product manufacturing
* Junk yards
* Oil and gas drilling
* Vehicle maintenance shops
* Chemical, paint, and allied product manufacturing
* Laundries and dry cleaners
* Electronic and other equipment manufacturing, including metal plating
* Other manufacturing and service businesses which use or store solvents or oils.
Land use controls available to townships, villages and cities include zoning, subdivision regulations, and special purpose ordinances. Land use controls are regulations which are administered to protect public health, safety, and welfare, and to achieve specific public purposes. State enabling legislation sets forth the general framework and procedural requirements for land use controls. In addition, a number of special-purpose state laws and regulations establish requirements and agency jurisdiction for specific types of land use activities.

The following land use activities can pose substantial risks to groundwater, but are regulated through state agency programs.
  • Farming operations in agricultural areas - Pesticide and fertilizer sales and use are regulated through the Michigan Department of Agriculture.

  • Oil and gas well drilling - Townships and counties are specifically precluded under state law from regulating oil and gas well drilling and related operations at the wellhead.

  • Underground storage tanks - The installation, operation, and closure of underground storage tanks (UST's) is regulated by the Fire Marshal Division, Michigan Department of State Police. Local governments may review UST's through their zoning ordinance, but zoning requirements must be consistent with state regulations.

  • Waste disposal facility siting - The locations of proposed hazardous waste and solid waste disposal facilities are reviewed by state officials in accordance with several state laws.
Several types of activities are substantially regulated by district or county health departments:

* Well drilling
* Abandoned well closure requirements
* Septic system location and installation.

Procedures and permit requirements, however, vary significantly among Michigan counties and communities. Few health departments, for example, administer requirements for septic system use or maintenance.

Many types of land use activities posing threats to groundwater are not regulated by state or county agencies. The task of land use regulation is substantially left to local governments. The following land uses are identified as priorities for local regulation for groundwater protection:

* Commercial and industrial businesses and facilities which use oil, solvents, chemicals and other hazardous substances;
* Agricultural chemical storage facilities (until state regulations are adopted);
* Government agency facilities, including vehicle maintenance and grounds maintenance;
* Junk yards and auto salvage yards;
* Oil and gas processing facilities (not drilling facilities);
* Road salt storage and application by local agencies.

Best Management Practices

A key step in developing zoning ordinance regulations for groundwater protection is the identification of practices, measures, and structural facilities which can be used to protect groundwater. Measures and practices which can be installed at the time of initial project construction are particularly appropriate for incorporation into local zoning ordinances. Requirements for spill prevention and/or waste reduction plans may also be useful, especially for regulating medium large manufacturing establishments with the staff capability of preparing and implementing such plans. The particular types of measures or management practices necessary for groundwater protection vary among different types of land uses. Listed below are some of the "best management practices" which may be incorporated in local zoning ordinances.

* Secondary Containment for Aboveground Storage
* Blocking of Interior Floor Drains
* Secondary Containment for Loading and Unloding Areas
* Closed Holding Tanks with Off-site Disposal of Waste Water
* Water Well Isolation Distances for Underground Storage Tanks and above ground hazardous substance storage
* Density Restrictions For Unsewered Development
* Natural Infiltration by Minimizing Impervious Surfaces
* Spill Prevention and Waste Reduction Plan
* Groundwater Monitoring Requirements

The Legal Basis for Protection

State and county programs regulate land use activities which pose particular groundwater threats, such as underground storage tanks and wastewater discharges to groundwater. However, Michigan agencies have not implemented a comprehensive groundwater protection regulatory program because of limited funding and the wide range of land uses which would need to be regulated. In contrast, local governments have broad powers and legal authority to protect the public health, safety and welfare through planning and land use regulations. For example, the Township Planning Act (Act 168 of 1959) enables townships to prepare plans which:

"encourage the use of resources in accordance with
their character and adaptability;...

provide for a system of transportation, sewage disposal, safe and adequate water supply, recreation and other public improvements;...

consider the character of each township and its suitability for particular uses judged in terms of such factors as the trend in land and population development."

Planning for groundwater protection is an essential step leading toward cost-effective governmental programs and regulations. For example, proactive planning for groundwater protection helps to assure a streamlined and effective development plan review system. However, planning for groundwater protection is a challenge, since numerous land use activities and factors must be considered. Information about the groundwater resource and vulnerability is incomplete. The actual threats from particular categories of land uses vary with particular facilities, hazardous substance use, and management practices. The existing regulations are implemented by agencies at various levels of government and, unfortunately, gaps in the regulatory system are numerous. The complexity of the subject is a major barrier to initiating planning. Of necessity, decisions will need to be made with incomplete information.

A seven step process leading to the adoption of local policies and programs for groundwater protection is recommended for Michigan communities. The seven basic steps are as follows:

  1. Review available data on groundwater vulnerability and use;

  2. Identify potential contamination threats, as well as land use and growth projections;

  3. Using information collected through steps 1 and identify community goals related to groundwater protection;

  4. Identify the local administrative capability to develop and implement programs;

  5. Communicate with county and state agency officials about best management practices, state and county regulations, and threats to groundwater;

  6. Review options for zoning regulations;

  7. Adopt appropriate policies and regulations.

A review of available information about groundwater vulnerability and the current uses of groundwater is an essential first step for groundwater protection planning. Understanding the groundwater resource and its vulnerability should influence the scope of local government policies and is essential for justifying regulatory restrictions.

Three types of information about Michigan's groundwater resources are particularly useful for groundwater protection planning, although not always available:

  1. Information about the location and vulnerability of aquifers;

  2. Information about the flow of groundwater, including the connection of groundwater with surface waters; and

  3. Information about the use of groundwater, including water quality.

Michigan has three statutes enabling local governments to engage in local zoning, including:

  • City-Village Zoning Act, PA 207 of 1921 (MCL 125.581 et.seq.)

  • Township Rural Zoning Act, PA 184 of 1941 (MCL 125.271 et.seq.)

  • County Rural Zoning Enabling Act, PA 183 of 1943 (MCL 125.201 et.seq.)

The zoning enabling acts together with the planning enabling acts, local governments are both encouraged and authorized to engage in a wide range of actions to protect public health, safety and general welfare. While none of these statutes expressly mention groundwater, (and no litigation has addressed the issue) the enabling legislation appears broad enough to encompass groundwater protection as a legitimate local activity because groundwater is a natural resource and because it is an essential source of public and private water supply.

Five factors are of special significance in designing local zoning regulations to achieve groundwater protection. These are:

  1. Sound planning and analysis

  2. Reasonableness of local regulations

  3. Specific focus of the regulations

  4. Need for appropriate standards

  5. Relationship to similar regulations in adjoining jurisdictions.

Six basic issues are likely to be seriously evaluated by communities considering which zoning option to select as an initial starting point for their groundwater protection program. These include:

* Current and anticipated future use of groundwater as reflected in the goals of the protection program;
* Degree of vulnerability of groundwater resources;
* Degree of threat to the resource;
* Administrative and financial capability to implement a protection program;
* Legal liability of inaction; and
* Role of the district or county public health department.

Zoning Option 1: Link to Other Permits

Under this option zoning approval is conditioned on the issuance of county, state and federal environmental permits/approvals.

At a minimum, every community can add a provision to the text of the zoning ordinance requiring that no land use permit, zoning permit, occupancy permit or (if applicable) building permit shall be issued for any land use or activity until it has obtained all required environmental permits or approvals according to existing county, state, and/or federal law. Many communities already have such a generic provision in their zoning ordinance and it applies to any environmental permit or approval, not simply those that may be necessary to prevent groundwater contamination.

For those communities wishing to be more explicit, a variation of this approach is to list the specific land uses which are required to obtain such permits. Another variation is to expressly list specific permits or approvals which must be obtained.Both of these variations provide prospective ordinance readers with information that may facilitate the review and approval process. However, they also require periodic monitoring by the community to keep the lists up to date.

Zoning Option 2: Site Plan Review

This approach calls for the addition of groundwater protection standards to those normally applied during the site plan review process. The planning commission or zoning administrator conditions site plan approval on conformance with groundwater protection standards. This option could apply to all land uses in the community, or be targeted at some or all land uses in certain zones.

Site plan review requirements typically are applied to all land uses in commercial, industrial and institutional zones. In some communities they are applied to all land uses above a certain threshold, such as those requiring 5 or more parking spaces, or greater than 10,000 square feet, etc., regardless of where they are located. In either event, it is likely that the land uses which pose the greatest potential threats to groundwater are already subject to local site plan review.

Zoning Option 3: Overlay Zone

A "groundwater protection overlay zone" is an approach which can be applied on either an area-specific or whole community basis. If developed to protect specific aquifers or an area around a community well (wellhead protection), then hydrogeologic data is necessary to support the demarcation of the protection overlay zone.

Structurally, a groundwater protection overlay zone would have ordinance language that paralleled, in many respects, the language in typical zoning districts. The purpose of the district would be stated, permitted and prohibited uses would be identified, and any design and mitigation standards would be detailed. Some, if not all of the uses could be processed as special land uses (also known as conditional land uses or special approval uses).

Zoning Option 4: Hazardous Substance Control Ordinance

This approach focuses on regulation of the hazardous substances which can contaminate groundwater, rather than the more indirect approach of regulating the land uses which use hazardous substances. Hazardous substance regulations are found in (or integrated with) the zoning ordinance, the local fire code or a separate ordinance. They tend to be complex and can generate significant administrative costs. However, in some situations, like extensive industrial development near municipal wellheads, a hazardous substance control ordinance may present the best solution. A hazardous substance control ordinance can also be used in addition to or in combination with the other zoning options.

One benefit of hazardous substance regulation is that a community knows what is being used and where. This is of great importance to fire and emergency services personnel during times of catastrophe. Perhaps the greatest benefit of this approach is the fact that by establishing thresholds for use of particular hazardous substances subject to reporting and inspection, an incentive is created to reduce or eliminate the use of certain hazardous substances to fall below the regulatory threshold.

Zoning Option 5: Regional Interjurisdictional Permit Program

This option is founded on the establishment of an interjurisdictional approach to groundwater protection, so that the entire aquifer is protected (not simply those portions under local regulations).

Such programs could take the form of intercounty programs or special metropolitan districts whose purpose is interjurisdictional groundwater protection. Such a program would closely coordinate permitting activities at all levels of government and may ultimately result in a single coordinated permit processing and enforcement system built on a common data base. This size of the area protected would determined by the size of the aquifer and the number of communities that were willing to cooperate. There are presently no programs in Michigan operating under this option.
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