New Hampshire Revised Statutes 485-C:21 – Approval for Large Groundwater Withdrawals
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I. No person may withdraw more than a total of 57,600 gallons of water in any 24-hour period from a well or wells sited at a single property or place of business after the effective date of this section, regardless of the number of wells sited on the property or business, without the prior approval of the department.
II. Applications for approval of water withdrawals of 57,600 gallons or more per day shall be filed with the department on a form approved by the department. A preliminary report submitted by a public water system pursuant to department rules shall be an application for purposes of this section. Copies of the application and any subsequent materials submitted to the department shall be forwarded by certified mail by the applicant to the governing bodies of each municipality and each supplier of water within the potential impact area of the proposed withdrawal as defined in N.H. Rev. Stat. § 485-C:21, V-e. The department shall provide the governing body of each municipality with copies of any mailed correspondence sent to the applicant. The department shall provide the applicant with copies of any mailed correspondence sent to or received from the governing body of a municipality.
III. Following the submission of the application, the department shall hold a public hearing on the application in the municipality in which the proposed withdrawal is to be made upon the request of the governing body of any municipality or supplier of water within the potential impact area, provided that such a hearing is requested within 15 days of receipt of the application.
IV. The department shall hold the public hearing within 30 days after the request of the governing body of the municipality or the supplier of water made pursuant to paragraph III. Notice of the hearing shall be made by the applicant and shall be published twice in 2 different weeks, the last publication to be 7 days before the hearing, in one newspaper of general circulation throughout the state and another newspaper of general circulation in the municipality. The notice shall also be posted in 2 public places in the municipality.
V. The applicant and the governing body of each municipality and each supplier of water within the potential impact area of the well may submit comments to the department relative to the proposed withdrawal within 45 days after the public hearing in the municipality or, if no hearing is requested, within 45 days after the receipt of the application. If the comments relative to the application make recommendations to the department, the department shall specifically consider such recommendations and shall issue written findings with respect to each issue raised that is contrary to the decision of the department.
V-a. Upon the request of the governing body of a municipality within the potential impact area, the department shall hold a public hearing, after receipt of the final report, and prior to a final decision. The department shall notify the municipalities within 10 days of receiving the final report. The municipalities shall have 15 days within which to request a public hearing. Notice and response to hearing requests shall be the same as that required under paragraph IV.
V-b. The department’s decision on the application shall be based on a demonstrated need for the withdrawal after review of:
(a) A description of the need.
(b) A conservation management plan.
(c) A conceptual hydrologic model of the withdrawal.
(d) A water resource and use inventory.
(e) The effects of the withdrawal on water resources and uses.
(f) Completion of a withdrawal testing program.
(g) Development of an impact monitoring and reporting program.
(h) Identification of potential mitigation measures.
V-c. In order to preserve the public trust, no large groundwater withdrawal shall cause an unmitigated impact as determined by the following:
(a) Reducing the withdrawal capacity of a private water supply well of a single residence as a result of the reduction of available water that is directly associated with the withdrawal as determined by the following:
(1) Any reduction in capacity for wells with a capacity less than water well board recommended optimum minimum flow capacity of 4 gallons per minute for 4 hours before the withdrawal;
(2) Any reduction in capacity below 4 gallons per minute for 4 hours, for wells that had a capacity greater than 4 gallons per minute for 4 hours, before the withdrawal; or
(3) A reduction in capacity where the well still has a capacity between 4 gallons and 10 gallons per minute for 4 hours and the user provides information indicating that the reduction in flow has resulted in the inability to meet his or her water needs;
(b) Reducing the capacity of a public drinking water supply below the minimum withdrawal rates required per consumer determined by the following:
(1) Minimum daily amounts of drinking water shall be determined per use based on the design flow criteria established for public water supply systems established in rules adopted by the department; or
(2) Where it is verified that such wells were unable to produce the design flow before the withdrawal began, the adverse impact shall be any reduction in the ability to produce water;
(c) Reducing the capacity of a water supply that is used for a multiple unit dwelling residence, but that is not a public water supply, that results in the inability to continue established activities or maintain existing water capacity requirements;
(d) Reducing the capacity of a private, non-residential, non-drinking water supply that results in the inability of a commercial, industrial, agricultural, or retail facility to continue established services or production volumes;
(e) Reducing the ability of a registered water user to produce volumes equivalent to the average daily withdrawal for a specific calendar month as determined by discharge measurements and reports made to the department in accordance with the water user requirements under N.H. Rev. Stat. Chapter 488 or other previous water use reporting requirements of the department;
(f) Reducing surface water levels or flows that will, or do, cause a violation of surface water quality rules adopted by the department;
(g) Causing a net loss of values for submerged lands under tidal and fresh waters and its wetlands as set forth in RSA 482-A;
(h) Causing the inability of permitted surface water or groundwater discharges to meet permit conditions;
(i) Reducing river flows below acceptable levels established pursuant to RSA 483;
(j) Causing the contamination of groundwater obtained from wells or surface waters from contaminated groundwater whose flow has been altered by the withdrawal, or causing the contamination of an aquifer or contributing to the spread of any existing contamination;
(k) Causing the long-term predictable rate of replenishment of the aquifer that is the source of the withdrawal to be exceeded.
V-d. Terms and conditions of approval for a large groundwater withdrawal may be altered by the department to accommodate for drought conditions or new withdrawals.
V-e. Applications for large groundwater withdrawals shall be accompanied by an impact assessment of the potential impact area of the proposed withdrawal to demonstrate the preservation of the public trust as set forth in paragraph V-c. The impact assessment shall include at a minimum the following:
(a) The maximum extent of the cone of depression created by the withdrawal with the assumption of a conceptual hydrological model condition of 180 days of continuous pumping at maximum volumes without recharge from rainfall or snowmelt;
(b) The maximum extent of the recharge area for the withdrawal with the assumption of a conceptual hydrologic model condition of 180 days of continuous pumping at maximum volumes without recharge from rainfall or snowmelt; and
(c) The downgradient area of the withdrawal which shall include:
(1) An existing or new delineation of a potential impact area large enough so that the size of the entire study area for the withdrawal is at least 10 times the size of the recharge area for the withdrawal;
(2) An existing or new delineation of a watershed where the amount of water crossing the downgradient boundary, that is, leaving the study under current conditions, is at least 10 times the amount to be withdrawn; or
(3) An alternative method of estimating a potential impact area provided it relies on conservative assumptions, is demonstrated as appropriate for the site by test results, and is clearly explained and justified.
VI. (a) Decisions of the department may be appealed in accordance with N.H. Rev. Stat. § 21-O:7, IV.
(b) Any party shall have the right to appeal from the decision of the water council to the superior court of the county in which the large groundwater withdrawal is to be made to determine the validity and the reasonableness of the department’s action on the permit. The appeal shall be filed within 60 days after the decision of the water council. The appeal shall suspend the decision of the department pending the outcome of a preliminary hearing. The appeal, so far as practicable, shall have precedence over other actions in the same court.
VII. Records of public hearings shall be available pursuant to RSA 91-A.
VIII. Before the department issues a large groundwater withdrawal permit, any municipality in which a well is sited or proposed to be sited, or any municipality within the potential impact area of the proposed withdrawal pursuant to paragraph V-e, may require the department to determine that the withdrawal will not infringe on the public’s use of groundwater, including any contribution to wetlands and surface waters, by ensuring that the requirements of paragraph V-c are met. The department’s determination shall be based on substantial evidence and shall include the methods, evidence, and data it used to support its judgment. No municipality shall be required to collect data relative to a seasonal river overflow surface water stream, in order to determine any long-term unmitigated impact and prevent irreversible effects of the large groundwater withdrawal well, for more than 3 years unless the department provides scientific justification for longer monitoring as it relates to the effect of the groundwater withdrawal only. After the department issues a large groundwater withdrawal permit, such municipality may require the department to provide a written finding describing the status of a decision issued by the department on an application submitted under this section when a local building permit directly related to a large groundwater withdrawal activity expires or becomes null and void, or both. The department shall determine if the change in status of such local permit affects the decision the department made on the application.
IX. The department shall allow any municipality showing that it may be substantially and specifically affected by a proceeding under this chapter to intervene as a party in the whole or any portion of the proceeding and shall allow the municipality to participate by presentation of argument orally or in writing or for any other purpose, as the department may order. A municipality that intervenes before the department shall retain its status through any appeal of the department’s decision.
II. Applications for approval of water withdrawals of 57,600 gallons or more per day shall be filed with the department on a form approved by the department. A preliminary report submitted by a public water system pursuant to department rules shall be an application for purposes of this section. Copies of the application and any subsequent materials submitted to the department shall be forwarded by certified mail by the applicant to the governing bodies of each municipality and each supplier of water within the potential impact area of the proposed withdrawal as defined in N.H. Rev. Stat. § 485-C:21, V-e. The department shall provide the governing body of each municipality with copies of any mailed correspondence sent to the applicant. The department shall provide the applicant with copies of any mailed correspondence sent to or received from the governing body of a municipality.
Terms Used In New Hampshire Revised Statutes 485-C:21
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to any section of these laws, shall mean the section next preceding or following that in which such reference is made, unless some other is expressly designated. See New Hampshire Revised Statutes 21:13
- governing body: shall mean the board of selectmen in a town, the board of aldermen or council in a city or town with a town council, the school board in a school district or the village district commissioners in a village district, or when used to refer to unincorporated towns or unorganized places, or both, the county commissioners. See New Hampshire Revised Statutes 21:48
- month: shall mean a calendar month, and the word "year" a calendar year, unless otherwise expressed; and the word "year" shall be equivalent to the expression "year of our Lord. See New Hampshire Revised Statutes 21:8
- person: may extend and be applied to bodies corporate and politic as well as to individuals. See New Hampshire Revised Statutes 21:9
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- state: when applied to different parts of the United States, may extend to and include the District of Columbia and the several territories, so called; and the words "United States" shall include said district and territories. See New Hampshire Revised Statutes 21:4
III. Following the submission of the application, the department shall hold a public hearing on the application in the municipality in which the proposed withdrawal is to be made upon the request of the governing body of any municipality or supplier of water within the potential impact area, provided that such a hearing is requested within 15 days of receipt of the application.
IV. The department shall hold the public hearing within 30 days after the request of the governing body of the municipality or the supplier of water made pursuant to paragraph III. Notice of the hearing shall be made by the applicant and shall be published twice in 2 different weeks, the last publication to be 7 days before the hearing, in one newspaper of general circulation throughout the state and another newspaper of general circulation in the municipality. The notice shall also be posted in 2 public places in the municipality.
V. The applicant and the governing body of each municipality and each supplier of water within the potential impact area of the well may submit comments to the department relative to the proposed withdrawal within 45 days after the public hearing in the municipality or, if no hearing is requested, within 45 days after the receipt of the application. If the comments relative to the application make recommendations to the department, the department shall specifically consider such recommendations and shall issue written findings with respect to each issue raised that is contrary to the decision of the department.
V-a. Upon the request of the governing body of a municipality within the potential impact area, the department shall hold a public hearing, after receipt of the final report, and prior to a final decision. The department shall notify the municipalities within 10 days of receiving the final report. The municipalities shall have 15 days within which to request a public hearing. Notice and response to hearing requests shall be the same as that required under paragraph IV.
V-b. The department’s decision on the application shall be based on a demonstrated need for the withdrawal after review of:
(a) A description of the need.
(b) A conservation management plan.
(c) A conceptual hydrologic model of the withdrawal.
(d) A water resource and use inventory.
(e) The effects of the withdrawal on water resources and uses.
(f) Completion of a withdrawal testing program.
(g) Development of an impact monitoring and reporting program.
(h) Identification of potential mitigation measures.
V-c. In order to preserve the public trust, no large groundwater withdrawal shall cause an unmitigated impact as determined by the following:
(a) Reducing the withdrawal capacity of a private water supply well of a single residence as a result of the reduction of available water that is directly associated with the withdrawal as determined by the following:
(1) Any reduction in capacity for wells with a capacity less than water well board recommended optimum minimum flow capacity of 4 gallons per minute for 4 hours before the withdrawal;
(2) Any reduction in capacity below 4 gallons per minute for 4 hours, for wells that had a capacity greater than 4 gallons per minute for 4 hours, before the withdrawal; or
(3) A reduction in capacity where the well still has a capacity between 4 gallons and 10 gallons per minute for 4 hours and the user provides information indicating that the reduction in flow has resulted in the inability to meet his or her water needs;
(b) Reducing the capacity of a public drinking water supply below the minimum withdrawal rates required per consumer determined by the following:
(1) Minimum daily amounts of drinking water shall be determined per use based on the design flow criteria established for public water supply systems established in rules adopted by the department; or
(2) Where it is verified that such wells were unable to produce the design flow before the withdrawal began, the adverse impact shall be any reduction in the ability to produce water;
(c) Reducing the capacity of a water supply that is used for a multiple unit dwelling residence, but that is not a public water supply, that results in the inability to continue established activities or maintain existing water capacity requirements;
(d) Reducing the capacity of a private, non-residential, non-drinking water supply that results in the inability of a commercial, industrial, agricultural, or retail facility to continue established services or production volumes;
(e) Reducing the ability of a registered water user to produce volumes equivalent to the average daily withdrawal for a specific calendar month as determined by discharge measurements and reports made to the department in accordance with the water user requirements under N.H. Rev. Stat. Chapter 488 or other previous water use reporting requirements of the department;
(f) Reducing surface water levels or flows that will, or do, cause a violation of surface water quality rules adopted by the department;
(g) Causing a net loss of values for submerged lands under tidal and fresh waters and its wetlands as set forth in RSA 482-A;
(h) Causing the inability of permitted surface water or groundwater discharges to meet permit conditions;
(i) Reducing river flows below acceptable levels established pursuant to RSA 483;
(j) Causing the contamination of groundwater obtained from wells or surface waters from contaminated groundwater whose flow has been altered by the withdrawal, or causing the contamination of an aquifer or contributing to the spread of any existing contamination;
(k) Causing the long-term predictable rate of replenishment of the aquifer that is the source of the withdrawal to be exceeded.
V-d. Terms and conditions of approval for a large groundwater withdrawal may be altered by the department to accommodate for drought conditions or new withdrawals.
V-e. Applications for large groundwater withdrawals shall be accompanied by an impact assessment of the potential impact area of the proposed withdrawal to demonstrate the preservation of the public trust as set forth in paragraph V-c. The impact assessment shall include at a minimum the following:
(a) The maximum extent of the cone of depression created by the withdrawal with the assumption of a conceptual hydrological model condition of 180 days of continuous pumping at maximum volumes without recharge from rainfall or snowmelt;
(b) The maximum extent of the recharge area for the withdrawal with the assumption of a conceptual hydrologic model condition of 180 days of continuous pumping at maximum volumes without recharge from rainfall or snowmelt; and
(c) The downgradient area of the withdrawal which shall include:
(1) An existing or new delineation of a potential impact area large enough so that the size of the entire study area for the withdrawal is at least 10 times the size of the recharge area for the withdrawal;
(2) An existing or new delineation of a watershed where the amount of water crossing the downgradient boundary, that is, leaving the study under current conditions, is at least 10 times the amount to be withdrawn; or
(3) An alternative method of estimating a potential impact area provided it relies on conservative assumptions, is demonstrated as appropriate for the site by test results, and is clearly explained and justified.
VI. (a) Decisions of the department may be appealed in accordance with N.H. Rev. Stat. § 21-O:7, IV.
(b) Any party shall have the right to appeal from the decision of the water council to the superior court of the county in which the large groundwater withdrawal is to be made to determine the validity and the reasonableness of the department’s action on the permit. The appeal shall be filed within 60 days after the decision of the water council. The appeal shall suspend the decision of the department pending the outcome of a preliminary hearing. The appeal, so far as practicable, shall have precedence over other actions in the same court.
VII. Records of public hearings shall be available pursuant to RSA 91-A.
VIII. Before the department issues a large groundwater withdrawal permit, any municipality in which a well is sited or proposed to be sited, or any municipality within the potential impact area of the proposed withdrawal pursuant to paragraph V-e, may require the department to determine that the withdrawal will not infringe on the public’s use of groundwater, including any contribution to wetlands and surface waters, by ensuring that the requirements of paragraph V-c are met. The department’s determination shall be based on substantial evidence and shall include the methods, evidence, and data it used to support its judgment. No municipality shall be required to collect data relative to a seasonal river overflow surface water stream, in order to determine any long-term unmitigated impact and prevent irreversible effects of the large groundwater withdrawal well, for more than 3 years unless the department provides scientific justification for longer monitoring as it relates to the effect of the groundwater withdrawal only. After the department issues a large groundwater withdrawal permit, such municipality may require the department to provide a written finding describing the status of a decision issued by the department on an application submitted under this section when a local building permit directly related to a large groundwater withdrawal activity expires or becomes null and void, or both. The department shall determine if the change in status of such local permit affects the decision the department made on the application.
IX. The department shall allow any municipality showing that it may be substantially and specifically affected by a proceeding under this chapter to intervene as a party in the whole or any portion of the proceeding and shall allow the municipality to participate by presentation of argument orally or in writing or for any other purpose, as the department may order. A municipality that intervenes before the department shall retain its status through any appeal of the department’s decision.