PA 07-244—sSB 1341

Public Health Committee

Planning and Development Committee

Energy and Technology Committee

Environment Committee

AN ACT CONCERNING APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, PROTECTING PUBLIC AND PRIVATE WATER SUPPLIES FROM CONTAMINATION AND AUTHORIZING THE LEASE OF CERTAIN WATER COMPANY OWNED CLASS I AND CLASS II LANDS

SUMMARY: This act amends the certificate of public convenience and necessity applicable to certain water company construction and expansion by (1) adding “state agency” to the definition of water company, (2) creating two distinct processes for issuing certificates to residential and non-residential water systems, (3) establishing ownership responsibilities for new water supplies, and (4) establishing clearer ties to the Water Utility Coordinating Committee (WUCC) drinking water supply planning process.

The act makes changes to the permit process for replacement wells and wells on residential properties.

The act prohibits an owner of a private residential well that (1) currently supplies or previously supplied water to another household and (2) provides or previously provided continuous water service to that household for at least 50 years, from discontinuing the water service without an alternative, available water source. Each household receiving water from the private residential well must contribute equally to the well's maintenance costs.

The act allows the city of New Britain to change the use of some of its water company owned lands to allow for extraction of stone or other materials from defined acreage in Plainville, through a leasing process that is part of a contract with New Britain as a party. (PA 07-05, JSS, 64 and 73 repeals this and instead requires DPH to commission and supervise an independent evaluation of the effects of allowing New Britain to change the use of some of its water company lands. )

Finally, the act requires notice to abutting property owners in certain cases of subsurface sewage disposal system (septic system) repair or new construction.

EFFECTIVE DATE: October 1, 2007, except the restriction on discontinuing service by a private residential well, the subsurface sewage disposal system provision, and the New Britain water company land lease and contract provisions are effective upon passage.

CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY

Certificate Process

The law requires water companies to get a certificate of public convenience and necessity from the Department of Public Utility Control (DPUC) and the Department of Public Health (DPH) before they begin the construction or expansion of their systems. Under the law, private companies, municipal water systems, and other entities serving between 15 service connections or 25 people and 250 connections or 1,000 people on a regular basis must get a certificate when beginning construction or expanding. The act applies these provisions to state agencies by amending the definition of water company to include a state agency. Rather than supplying water to the specified number of connections or people on a regular basis, the act applies the certificate requirement to entities that supply water for at least 60 days in any one year.

Conditions for Issuing a Certificate for Residential Systems

Under the law, DPUC and DPH have to issue a certificate if they find that:

1. no feasible interconnection with an existing system is available to the applicant;

2. the applicant plans to build or expand according to DPUC-established engineering standards;

3. the applicant has the financial, technical, and managerial resources to operate the proposed water supply system reliably and efficiently enough to provide continuous service;

4. the proposed construction or expansion would not result in a duplication of service in the applicable service area; and

5. the system meets all federal and state standards for water supply systems.

The act makes these conditions applicable specifically to water systems serving 25 or more residents (“residential systems”) that are not the subject of DPUC proceedings concerning failure to comply with agency orders, economic viability, or a department order for a water company to acquire another water company. But the act changes conditions 1 and 3 above as follows:

1. no interconnection is feasible with a water system owned by, or made available through an arrangement with, the provider of the exclusive service area (ESA) or with another existing water system where no ESA has been assigned; and

2. the requirement that the applicant have the financial, managerial, and technical resources to reliably operate the system is eliminated and instead ownership of the system must be assigned to the ESA provider.

The other conditions remain the same.

The act requires that an application for a certificate include, when applicable, a signed agreement between the water company and ESA provider that details the terms and conditions under which the system will be built or expanded and for which the provider will assume service and ownership responsibilities.

An ESA, under the law, is an area where public water is supplied by one system. ESAs are determined by a process involving WUCCs, which DPH convenes for public water supply management areas. Such areas are regions determined by DPH to have similar water supply problems (CGS 25-33d to 25-33j).

Exemption for Municipal Systems

The act eliminates an exemption for certain municipal water systems from the interconnection feasibility and the non-duplication requirements described above. This applies to any water system (1) owned and operated, or proposed to be owned and operated, by a municipality, municipal district, or regional water authority; (2) owned by a municipality, municipal district, or regional authority and operated, or proposed to be so, on its behalf by an operator that has obtained all required DPH certifications; or (3) owned or operated by a nonprofit corporation on behalf of one or more municipalities for providing water service to an elderly housing project with all required DPH certifications. It also eliminates a provision of law that allowed an existing municipality, municipal district, or regional water authority to voluntarily transfer ownership of a water supply system to another water company, municipal public service company, or regional water authority.

Regulations

The act requires DPUC and DPH to each adopt regulations on the certificate process for residential systems. Prior law only required DPUC, in consultation with DPH, to adopt such regulations.

Certificate Process for Non-Residential Systems

The act establishes a distinct and separate certificate process that DPH administers for water systems serving 25 or more persons, but not 25 or more residents, for at least 60 days in any one year (a “non-residential system”) that parallels the system for residential systems described above. (This applies regardless of whether the system is in DPUC proceedings). These systems serve entities such as certain schools, offices, restaurants, convenience stores, and similar entities. The conditions for obtaining the certificate are basically the same as for residential systems except that ownership of the system will be assigned to the ESA provider if agreeable to it and DPH, or may remain with the certificate applicant if agreeable to DPH. In the later case, the applicant must have the financial, managerial, and technical resources to (1) operate the proposed system in a reliable and efficient manner and (2) provide continuous and adequate service to consumers until such time as the water system for the ESA has made an extension of the water main. At that time, the applicant must get service from the ESA provider.

The act specifies that any construction or expansion requiring a certificate must be built, maintained, and operated according to the certificate and any of its terms, limits, or conditions.

The act exempts properties held by the Department of Environmental Protection (DEP) and used for or in support of fish culture, natural resources conservation, or outdoor recreation from the certificate requirements concerning interconnection feasibility, ownership assignment to the ESA provider, and the duplication of service.

The act requires DPH to adopt regulations implementing this process for non-residential systems. The regulations may include measures to encourage water conservation and proper maintenance.

WELL PERMITS

Replacement Wells

Existing law allows a local health director, regardless of DPH regulations, to authorize under certain conditions an existing well's use or its replacement at a single-family residence located within 200 feet of a community water supply system measured along a street, alley, or easement. This can occur:

1. for a replacement well used for domestic purposes if (a) the premises are not connected to the public water supply, (b) the water quality is tested at installation and at least every 10 years afterward or as requested by the health director, (c) the testing shows the well meets the Public Health Code's water quality standards for wells, and (d) all other regulatory requirements are met; and

2. for a new or replacement well on a premises served by a public water supply if (a) it is used solely for irrigation or some other outdoor purpose, (b) it is permanently and physically separated from the home's internal plumbing, and (c) a reduced pressure device is installed to protect against a cross-connection with the public water supply.

The act changes the 200-foot standard by specifying that this distance is measured from the property's boundary.

The act authorizes a local health director to issue an order requiring the immediate implementation of mitigation measures, up to and including permanent abandonment of the well, according to the Connecticut Well Drilling Code, if he or she determines that an irrigation well creates an unacceptable risk of injury to the health or safety of those using the water, the general public, or to any public water supply. The act allows the owner of the system to terminate service to the premises if a cross connection with the public water system is found.

Permits for Wells on Residential Property

DPH regulations generally prohibit private wells on residential property within 200 feet of a public water supply. Existing law allows local health directors to issue a permit for a new or replacement well only if:

1. the well water is used only for irrigation or other outdoor purpose, is not used for human consumption, and a reduced pressure device is installed to protect against a cross-connection with the public water supply;

2. the well replaces one that was used at the premises for domestic purposes and is subject to water quality testing when it is installed and at least every 10 years afterward or as requested by the health director; or

3. DPUC has ordered the public water system to reduce the demand on it, the well is not connected to the public water supply, and use of the well does not impair the purity or adequacy of the supply or service to the system's customers.

The act gives the local health director the same authority to issue an order requiring immediate mitigation measures concerning an irrigation well as described above in the previous section. It exempts irrigation wells from the water quality testing standards and uses the same 200-foot boundary standard described earlier.

Regulations

By law, the DPH commissioner must adopt regulations clarifying criteria under which a well permit exception may be granted and describing conditions that must be imposed when a well is permitted at premises that are connected to the public water supply. The act specifies that these regulations must also address the situation when a well is permitted when the premises' boundary is within 200 feet of an approved community water system.

SUBSURFACE SEWAGE DISPOSAL SYSTEMS

The act requires any person applying to DPH for authorization to repair or newly construct a subsurface sewage disposal system involving the waiver of the proximity requirement (the act does not describe nor further reference this requirement) as it relates to a private residential well, to notify all abutting property owners. Notice must be by certified mail, return receipt requested and must include a copy of the application. A DPH decision on the application constitutes a final decision for purposes of appeal to Superior Court.

The act specifies that approval of the application is not an affirmative defense for the system's owner concerning any liability claim for damages related to contamination caused by proximity of the system to a private residential well.

LEASE OF NEW BRITAIN WATER COMPANY LAND

Contract Requirements

The law restricts the ability of a water company to change the use of its class I or II lands located close to water supply sources.

The act allows New Britain to change the use of its water company owned class I and II lands to allow for the lease of about 131. 4 acres (the “0 Biddle Pass” in Plainville) if the lease is part of a contract to which New Britain is a party and includes provisions to do the following:

1. The lease and subsequent use of the land increases the future safe yield of a pure and adequate drinking water supply for New Britain and the surrounding area served by the city.

2. By the lease's conclusion, the entity leasing the land prepares the (a) site for a public drinking water reservoir capable of supplying an adequate safe yield of drinking water consistent with the most recently approved water supply plan, and (b) surrounding land for reforestation including sufficient tree plantings.

3. The extraction of stone or other material from the land or any adjacent land is a sufficient distance from residential homes to prevent unreasonable disruption of residential use.

4. The lease is for no more than 40 years.

5. Any conveyance of land immediately adjacent to the 131. 4 acres must contain appropriate deed restrictions sufficient to maintain a forested buffer of at least 1,000 feet measured from the quarry zone line.

Environmental Evaluation and Other Conditions

The act requires the following before the contract can be executed by New Britain:

1. an environmental evaluation conducted by an independent third party approved by DPH to evaluate the potential impact of the purity and adequacy of the existing and future public water supply, and DPH review of the evaluation to provide the New Britain Water Department with guidance on the suitability of the best management practices identified in the evaluation for protecting the public water supply and public health;

2. a 90-day period following completion of the evaluation to give DEP and DPUC time to provide DPH with comments on the evaluation;

3. DPH approved the lease provisions relating to its jurisdiction over and duties concerning water supplies, water companies, and operators of water treatment plants and water distribution systems; but DPH cannot approve these lease provisions unless New Britain has demonstrated, to DPH's satisfaction, through the environmental evaluation, that the contract and lease will not have a significant adverse impact on present and future purity and adequacy of the public drinking water supply and will provide for an additional water source consistent with the city's water supply plan and projected future regional supply needs;

4. DPH held a public hearing on the environmental evaluation with in 30 days of receiving it, with at least 15 days' notice by publication in the Connecticut Law Journal;

5. New Britain's mayor proposed the lease and contract to the Common Council, and within 30 days prior to submitting them to the Common Council, the mayor held a public hearing, with appropriate notice by newspaper;

6. after the public hearing, the mayor recommends approval or disapproval of the lease and contract to the Common Council ;

7. the mayor submitted the lease and contract proposal to the legislative bodies of New Britain and Plainville, the inland wetlands commissions of those municipalities, New Britain's city plan commission, and Plainville's planning and zoning commission;

8. all appropriate authorities in Plainville have approved the proposed use of the land;

9. New Britain's inland wetland commission and its city plan commission held a public hearing after receiving the mayor's proposal and voted to approve or reject it within 60 days after receiving it; and

10. New Britain's common council approved the mayor's proposal, including the lease and contract; but the council cannot consider the proposal until the inland wetland commission and the city plan commission have approved it, and cannot approve it after April 1, 2008.

Deed Restrictions

Under the act, before any activities on the parcel in question can begin, and subsequent to the lessee receiving all necessary federal, state, and municipal approvals to begin extraction or reservoir development activities on the site, the lessee must get deed restrictions for a minimum of twice the acreage that has been approved for extraction activities. These restrictions must (1) prohibit the use and development of acreage adjacent to the site for anything other than open space purposes; (2) permanently dedicate such acreage for land uses such as public parks, forests, or natural areas, including reservoirs; (3) require such acreage to be preserved predominantly in its natural scenic and open space condition that can allow for camping, hiking, forestry, fishing, and conservation activities; and (4) prohibit all other building or development except as may be required for source protection and to meet water quality standards if used as a public water supply.

If the maximum acreage amount on the site is approved for mineral extraction, such acreage restricted under the act must include a minimum of (1) 75 acres adjacent to the site and located in Southington and, if requested by Southington, it must be deeded to the town at no cost; (2) 94 acres adjacent to the site located in Plainville and, if so requested by Plainville, deeded to it at no cost; and (3) 94 acres adjacent to the site and located in New Britain, inclusive of the reservoir, and deeded to it at no cost if so requested.

BACKGROUND

Public Water Supply Coordination

PA 85-535 required DPH to coordinate the planning of public water supply systems. The law provides for a coordinated approach to long-range water supply planning by addressing water quality and quantity issues from an area-wide perspective. The process is designed to bring together public water system representatives and regional planning organizations to discuss long-range water supply issues and develop a plan for dealing with them.

The state is divided into seven management areas based on factors such as similarity of supply problems, proliferation of small water systems, groundwater contamination, and over-allocated water resources. DPH convenes a WUCC for a particular management area to address these issues. A WUCC consists of one representative from each public water system with a source of supply or service area within the public water supply management area and one representative from each regional planning agency within the management area (CGS 25-33d to 25-33j; DPH Regs. 25-33h-1 et seq. ).

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