[HISTORY: Adopted by the County Council of Sussex County 6-24-2008 by Ord. No.
1979. Amendments noted where applicable.]
This chapter shall be known and referred to and cited as the
"Source Water Protection Ordinance."
Sussex County residents rely exclusively on groundwater as their
source of drinking water for both large public water supply systems
and individual domestic wells. Although the County is blessed with
an abundance of groundwater, small amounts of pollution may contaminate
large quantities of groundwater making it unfit for human consumption,
putting our citizens at greater risk of illness and disease, and imposing
huge costs on residents and rate payers who will be called upon to
finance treatment systems or to secure alternative sources of drinking
water. While a number of state environmental programs regulate various
types of facilities and activities that are potential sources of contamination,
county and municipal governments are responsible for controlling land
use that can assist in providing some long- term groundwater protection.
The purpose of this chapter is to ensure that land use activities
are conducted in such a way as to minimize the impact on and reduce
the risk of contamination of excellent groundwater recharge areas
and wellhead protection areas which are the source of public drinking
water throughout the County. This chapter does not impose any new
requirements or restrictions on residential wells serving individual
households or wells used for agricultural purposes; however, it indirectly
affords them added protection. The chapter is intended to satisfy
the requirements of the Delaware Source Water Protection Law of 2001
as codified in 7 Del. C. 60, Subchapter VI.
The following definitions apply only to this chapter:
A well used for the watering of livestock, poultry, aquaculture
uses, or solely for the watering of household yards and gardens or
for other purposes related to farming in general, but not including
the irrigation of lands or crops. Water is not used for human consumption
or to service a dwelling.
The owner of a property or the legally authorized agent of
the owner that executes the necessary forms to obtain approval or
a permit for any zoning, subdivision, land development, building,
land disturbance, or other regulated activity.
A water-bearing geological formation that will yield water
to a well or spring. Aquifers can be classified as confined, semiconfined,
or unconfined.
A public water system which serves at least 15 service connections
used by year-round residents or regularly serves at least 25 year-round
residents.
An aquifer bounded above and below by impermeable beds, such
as silt or clay, or beds of distinctly lower permeability than that
of the aquifer itself and containing groundwater which is everywhere
at a pressure greater than atmospheric and from which water in a well
will rise to a level above the top of the aquifer.
Any substance, either man-made or natural, which is concentrated
enough to degrade water quality to a degree that renders such water
harmful to public health and safety, or to the environment.
The presence of contaminant.
The process of defining and/or mapping a boundary that approximates
the areas that contribute water to a particular water source used
as a public water supply.
The Department of Natural Resources and Environmental Control
(DNREC).
A well primarily used for potable nonpublic water supply
purposes, which serves three or fewer dwelling units.
Those areas with high percentages of sand and gravel that
have excellent potential for recharge as determined through a Stack
Unit Mapping Analysis performed originally by the Delaware Geological
Survey and presented in the Report of Investigations No. 66, Groundwater
Recharge Potential Mapping in Kent and Sussex Counties, Delaware,
Geological Survey, 2004.
Any water naturally found under the surface of the earth.
The sum of parking lots, roads, buildings, sidewalks or other
created surfaces that do not allow significant amounts of rainwater
to pass or infiltrate the soil.
A well which is used for the watering of lands or crops other
than household lawns and gardens.
A proposed development of land which may involve one or more
tax parcels for any residential, commercial or industrial use or combination
thereof, which is proposed within an area that is designated as a
"well head protection area" or an "excellent groundwater recharge
area."
A well which supplies water for potable and other beneficial
uses to service stations, stores, small offices, businesses, etc.,
with fewer than 25 employees; and from which the water is not used
in the manufacture or preparation of food or beverages for sale to
or use by the public in general.
Any action taken to lessen the specified undesirable impacts
of a proposed land use or land disturbance activity, including those
which would adversely affect the health or longevity of a natural
feature, pose a visual intrusion or conflict, or otherwise be deemed
incompatible with surrounding properties.
Any individual, firm, association, organization, partnership,
business trust, corporation, company, contractor, supplier, installer,
user, or owner, or any federal, state or local governmental agency
or public district or any officer or employee thereof.
Any water which is in compliance with all the primary health-related
drinking water standards specified in the Delaware Regulations Governing
Public Drinking Water Systems and the US EPA Safe Drinking Water Act,
and is acceptable for human consumption.
A community, noncommunity, or nontransient noncommunity water
system which provides piped water to the public for human consumption.
The system must have at least 15 service connections or regularly
serve at least 25 individuals daily for at least 60 days.
A well from which the water is used to serve a community
water system by Section 22.146 (Public Water Systems) in the Delaware
State Regulations Governing Public Drinking Water Systems.
Land area over which precipitation infiltrates into the soil
and percolates downward to replenish an aquifer.
An area that shall be free of any structures which would require a County building permit, excluding structures related to the well, water distribution or water treatment facilities. Vehicular traffic should be limited in this area to include only emergency or maintenance vehicles, and this area shall be maintained in a grass or natural vegetative state, except where additional surface improvements are specifically approved by the Commission or Council as identified in § 89-6C(1) and D(1).
Source water protection areas are wellhead protection areas
and excellent groundwater recharge areas.
The mitigation of the hydrologic impacts of lost natural
runoff storage by the use of constructed storage facilities.
For water quantity control, a system of vegetative, structural,
and other measures that may control the volume and rate of stormwater
runoff which may be caused by land disturbing activities or activities
upon the land; and
For water quality control, a system of vegetative, structural,
and other measures that control adverse effects on water quality that
may be caused by land disturbing activities or activities upon the
land.
An aquifer in which no relatively impermeable layer exists
between the water table and the ground surface and an aquifer in which
the water surface is at atmospheric pressure.
Relief from the standards of this chapter.
Any excavation that is drilled, cored, bored, washed, driven,
dug, jetted, or otherwise constructed when the intended use of such
excavation is for the location, testing, acquisition, use, for extracting
water from, or for the artificial recharge of subsurface fluids, and
where the depth is greater than the diameter or width. For the purpose
of this regulation, this definition does not include geotechnical
test; soil, telephone, and construction piling borings; fence posts,
test pits, or horizontal closed loop heat pump circulation systems
constructed within 20 feet of the ground surface.
The upper terminus of a well, including adapters, ports,
seals, valves, and other attachments.
The wellhead protection areas are surface and subsurface
areas surrounding public water supply wells or well fields where the
quantity or quality of groundwater moving toward such wells or well
fields may be affected by land use activity. Such activity may result
in a reduction of recharge or may lead to introduction of contaminants
to groundwater used for public supply (wellhead).
A.
Overlay maps prepared or provided by the Department of Natural Resources
and Environmental Control (DNREC) delineating wellhead protection
and excellent groundwater recharge potential areas in Sussex County
are hereby referenced in accordance with 7 Del. C. §§ 6082(b)
and 6083.
B.
The Department of Natural Resources and Environmental Control periodically
shall provide the Sussex County Department of Planning and Zoning
and Sussex County Council with updated wellhead protection area and
Excellent Recharge Area Maps which shall be referenced by this chapter
and shall be made available to the public upon request and posted
on the County website. Any expansion of the Excellent Recharge Area
Maps would require approval of the Sussex County Council.
C.
Challenges to the excellent recharge area mapping designations shall
be conducted in accordance with procedures set forth in the Appendix
to the Report of Investigations No. 66, Groundwater Recharge Potential
Mapping in Kent and Sussex Counties, Delaware, Delaware Geological
Survey, 2004, p. 13, or as allowed by the Sussex County Council.
A.
Any well in existence prior to the adoption of this chapter may be
replaced or modified and the replacement or modified well(s) is exempt
from the conditions of this chapter.
B.
All public water supply wells shall be centrally located within a
housing development, subdivision or strip development so that the
safe zone is located entirely on the lands of the applicant, provided
that when the safe zone cannot be located entirely on the lands of
the applicant, the applicant must hold an easement over the lands
of any adjoining owner onto which the safe zone may extend.
C.
For a public water supply well with a permitted allocation of 50,000
gallons per day (GPD) or greater, which draws water from an unconfined
aquifer, as interpreted by the Secretary of DNREC, or his assigned
DNREC Agent, or a licensed Delaware professional geologist, hydrologist
or engineer registered with the State of Delaware, the state geologist
from the Delaware Geological Survey, or the Division of Water Resources
Source Water Assessment and Protection Program, the following shall
apply:
(1)
A safe zone of no more than a one-hundred-foot radius from the well
shall be maintained. The safe zone may include structures, fixtures
and controls related to the well, water distribution or water treatment
facilities and access to the well for emergency and maintenance vehicles.
No other structures may be located within the safe zone without County
Council approval. For subdivisions requiring only Commission approval,
the Commission may approve, and for developments requiring Council
approval, the Commission may recommend and Council may approve the
location of multimodal paths, biking paths, walking trails and, in
those developments where they are to be specifically permitted by
restrictive covenants, golf cart paths, provided all such surface
improvements are located in the outer 50% of the safe zone and provided
further they are not located within any portion of a forested, landscaped
or other buffer required by any other County ordinance.
D.
For a public water supply well with a permitted allocation of 50,000
gallons per day (GPD) or greater which draws water from a confined
aquifer, as interpreted by the Secretary of the DNREC, or his assigned
DNREC Agent, or a licensed Delaware professional geologist, hydrologist
or engineer registered with the State of Delaware, the state geologist
from the Delaware Geological Survey, or the Division of Water Resources
Source Water Assessment and Protection Program, the following shall
apply:
(1)
A safe zone of no more than a one-hundred-foot radius from the well
shall be maintained. The safe zone may include structures, fixtures
and controls related to the well, water distribution or water treatment
facilities and access to the well for emergency and maintenance vehicles.
No other structures may be located within the safe zone without County
Council approval. For subdivisions requiring only Commission approval,
the Commission may approve and for developments requiring Council
approval the Commission may recommend and Council may approve the
location of multimodal paths, biking paths, walking trails and, in
those developments where they are to be specifically permitted by
restrictive covenants, golf cart paths, provided all such surface
improvements are located in the outer 50% of the safe zone and provided
further they are not located within any portion of a forested, landscaped
or other buffer required by any other County ordinance.
E.
For a public water supply well with a capacity of less than 50,000
gallons per day (GPD) which draws from a confined or unconfined aquifer,
the following shall apply:
(1)
A safe zone of no more than a twenty-foot radius from the well shall
be maintained. This safe zone may include electrical controls, access
to the well, distribution piping and other facilities/structures for
these items' continual maintenance. No other structures may be
located within the safe zone without the approval of County Council.
F.
The following conditions shall apply to all areas within a wellhead
protection area which fall between the edge of the safe zone and the
outer boundary of the wellhead protection area:
(1)
The requirements of this chapter do not impose any limitations upon
land development, provided the impervious cover of any portion of
the tax parcel located within the wellhead protection area is 35%
or less.
(2)
Impervious cover of that portion of a tax parcel within the wellhead
protection area which is greater than 35% but no more than 60% is
allowed, provided the applicant demonstrates through an environmental
assessment report prepared by a registered professional geologist
or registered professional engineer familiar with the hydrogeologic
characteristics of Sussex County and using a climatic water budget
that will insure that post-development recharge quantity will meet
or exceed the existing (predevelopment) recharge quantity. Beneficial
efforts to mitigate discharges to impervious surfaces shall count
towards the formula used to compute post-development mitigation of
any discharges.
(3)
For all new construction where the impervious surfaces exceed 60%
or where the level of post-development recharge is less than predevelopment
recharge, all structures shall be required to discharge roof drains
into underground recharge systems or into permeable surfaces that
allow the discharges to infiltrate into the ground. Efforts to mitigate
discharges to impervious surfaces shall count towards the formula
used to compute post-development mitigation of any discharges.
(4)
Notwithstanding provisions of § 89-6A (nonconforming uses) in Commercial, Industrial and Business Districts, including, but not limited to, Urban Business (UB), Neighborhood Business (B-1), General Commercial (C-1), Commercial Residential (CR-1), Marine, Light Industrial (LI-1), Light Industrial (LI-2), and Heavy Industrial (HI), within designated development zones where the impervious cover of a property exists prior to the effective date of this chapter and the applicant desires to re-develop the property, the gross impervious cover shall be equal to or less than the original impervious cover percentage of the original site.
(5)
Discharge from roof drains, containment areas or impoundments that
receive runoff from an area that may contain contaminants from mechanical
systems shall be disposed of using best management practices, such
as grass swales.
(6)
Aboveground and underground storage tanks (USTs) containing petroleum
or any hazardous substances listed in 40 CFR 116 in an aggregate quantity
equal to or greater than a reportable quantity as defined in 40 CFR
117 shall not be permitted in a designated wellhead protection area
unless such facilities meet the aboveground and underground storage
tank regulations as applicable to the State of Delaware.
G.
Within a wellhead protection area, stormwater management oversight
shall be referred to and governed by the Sussex County Conservation
District.
A.
Except as otherwise noted in this chapter, within zoning districts established under Article II of Chapter 115:
(1)
The requirements of this chapter do not impose any additional limitations
upon land development, provided the impervious cover of any portion
of the tax parcel located within the excellent recharge area is 35%
or less.
(2)
Impervious cover of that portion of a tax parcel within the excellent
groundwater recharge area which is greater than 35% but no more than
60% is allowed, provided the applicant demonstrates through an environmental
assessment report prepared by a registered professional geologist
or registered professional engineer familiar with the hydrogeologic
characteristics of Sussex County and using a climatic water budget
that will insure that post-development recharge quantity will meet
or exceed the existing (predevelopment) recharge quantity. Beneficial
efforts to mitigate discharges to impervious surfaces shall count
towards the formula used to compute post-development mitigation of
any discharges
(3)
For all new construction where the impervious surfaces exceed 60%
or where the level of post-development recharge is less than predevelopment
recharge, all structures shall be required to discharge roof drains
into underground recharge systems or permeable surfaces that allow
the discharges to infiltrate into the ground. Efforts to mitigate
discharges to impervious surfaces shall count towards the formula
used to compute post-development mitigation of any discharges.
B.
Notwithstanding with provisions of § 89-6A (nonconforming uses) in Industrial, Business, or Commercial Districts within designated development zones where the impervious cover of a property exists prior to the effective date of this chapter and the applicant desires to redevelop the property, the gross impervious cover shall be equal to or less than the original impervious cover percentage of the original site.
C.
Discharge from roof drains, containment areas or impoundments that
have runoff from an area that may contain contaminants from mechanical
systems shall be disposed of using best management practices such
as grass swales.
D.
Aboveground and underground storage tanks (USTs) containing petroleum
or any hazardous substances listed in 40 CFR 116 in an aggregate quantity
equal to or greater than a reportable quantity as defined in 40 CFR
117 shall not be permitted in a designated excellent groundwater recharge
area unless such facilities meet the aboveground and underground storage
tank regulations as applicable to the State of Delaware.
E.
On-site wastewater treatment and disposal systems shall be permitted
in recharge areas.
F.
Hazardous waste storage, treatment, and disposal facilities, hazardous
waste generators, sanitary and industrial facilities, as defined in
the Delaware Regulations Governing Hazardous Waste, shall not be permitted
in an excellent groundwater recharge area without an approved conditional
use zoning.
A.
All subdivision and land development plans depicting development or land disturbance (excluding agricultural tillage) submitted for County review shall be evaluated for the existence of wellhead protection areas and excellent groundwater recharge areas by scaling for distances shown on the Sussex County Water Resource Protection Maps as referenced in § 89-5 above.
(1)
If existing on the parcel, then the boundaries of all wellhead protection
areas and excellent groundwater recharge areas shall be clearly delineated
and noted on the plan by the applicant's engineer and/or surveyor.
B.
When there is a conflict between the mapped boundary of a wellhead protection area and/or an excellent groundwater recharge area and the actual site conditions, an applicant seeking a modification of the mapped boundaries shall follow the process set forth in Subsection C below, relating to the preparation of a report intended to determine more accurately the precise boundaries of the water resource protection areas, which report shall be submitted to the County with the detailed findings necessary to indicate the location of the boundaries.
C.
The report showing the boundary conflict should indicate the following:
(1)
A detailed topographic layout of the subdivision and/or area to be
developed prepared by a professional land surveyor or engineer licensed
in the State of Delaware.
(2)
For wellhead and recharge boundary determinations, a site-specific
geological and hydrogeological analysis shall be performed by a state-registered
professional geologist, or engineer with a background in hydrogeology
and shall be based upon a thorough site investigation and testing.
This analysis shall be submitted by the applicant to the Division
of Water Resources, Source Water Assessment and Protection Program
for consultation and to provide comment to Sussex County. The County
shall be obligated to give serious consideration to such comment,
but shall not be bound to reach a result consistent with said comment.
(3)
Evidence derived from a site-specific investigation, which may include
aquifer testing, test borings, test pits, observation wells, groundwater
elevations and topography surveys as appropriate for the type of water
resource protection area to clearly demonstrate that the area in question
does not meet the definition of a water resource protection area as
defined in this chapter.
D.
If the development of a property is restricted by a boundary determination made pursuant to this section, after consultation and comment from the State Division of Water Resources, Source Water Assessment and Protection Program, the owner may make application to the County Engineer's Office to adjust the boundary as to his/her property. The County Engineer's Office shall receive and respond to the application within 60 days, after consulting with and receiving the advice of the Technical Advisory Committee established pursuant to § 89-10 of this chapter. If the application is denied, the owner may apply for a variance as provided in § 89-11. If the application is approved, it shall have the effect of amending the limits of the water resource protection area.
A.
Nonconforming uses, existing prior to the adoption of this chapter, may continue in source water protection areas in the form in which they existed at the time of the adoption of this chapter. However no land use shall be changed which shall extend a nonconforming structure, except in accordance with Subsection B hereof.
B.
After the effective date of this chapter, a nonconforming building, structure or part thereof, which is not exempt under § 89-12 hereof, may be modified or enlarged, provided the enclosed total square footage is not increased by more than 10% and provided the landowner obtains a valid County building permit prior to the commencement of such work.
County Council shall be authorized to appoint a Source Water
Protection Technical Advisory Committee to be appointed by Council
with two Committee members to be appointed by each member of Council,
to serve for terms of two years each, with 1/2 of the Committee members
being lay persons and possessing a basic knowledge of groundwater
hydrology and the other 1/2 being licensed Delaware professional engineers,
geologists or hydrologists. The purpose of such Committee shall be
to provide technical assistance to Council and/or any of its departments
that may be involved in the implementation and oversight of this chapter.
If Council is unable, after diligent inquiry, to locate a sufficient
number of licensed engineers, geologists or hydrologists to serve
as Committee members, more than 1/2 the Committee may consist of lay
persons possessing a basic knowledge of groundwater hydrology; provided
however, that at least 1/3 of the Committee members shall be licensed
professional engineers, geologists or hydrologists. The Committee
shall act as a standing committee that will meet, as the need arises,
for the purposes described in this chapter.
Any requests for a variance from the terms of this chapter shall be addressed to and decided by County Council. On receipt of any such application, the County Administrator or his designee shall refer the request to the County Engineering Department and to the Technical Advisory Committee referred to in § 89-10. After consultation with such Committee, the County Engineer's Office shall advise Council within 60 days of receiving the referral of the recommendation of the Engineer's Office and the Technical Advisory Committee in respect to the application. If the recommendation is to grant the requested variance, County Council may approve that request without holding a hearing. Council shall issue its decision within 30 days after receiving the Engineer's recommendation. If the recommendation is to deny that request, the County Administrator or his designee shall notify the landowner of that recommendation in writing and after being so notified, the landowner shall have a period of 10 business days in which to request in writing that the matter be scheduled for a public hearing before Council. Council shall issue its decision within 30 days following the hearing. Notice of said hearing shall be advertised in the same manner in which other Council hearings are currently advertised. Upon the submission of a variance request, the landowner shall remit and pay a fee to Sussex County in the same amount as provided for a Board of Adjustment hearing under Chapter 62, § 62-7D(3).
The following are exempt from the requirements of this chapter:
A.
Private residential wells serving individual households;
B.
Wells used for agricultural purposes;
C.
Replacement wells;
D.
Minor subdivisions;
E.
Recorded subdivisions;
F.
Revisions to recorded subdivision plans that do not result in the
creation of additional lots;
H.
Improvements to existing residential lots, including additions to
existing single-family dwellings, the placement of sheds and fences;
and
I.
Subdivision and land development projects that have received preliminary
plan approval by the Planning and Zoning Commission, conditional use
site plans that have received approval by the Commission, conditional
use site plans for public water supply in an existing recorded subdivision
or concept plan approval in the case of residential planned communities
and cluster subdivisions shall not be subject to the provisions of
this chapter for as long as their approval remains valid.
This chapter shall become effective on the 91st day from the
date of its adoption.
