W. Penn unveils water ordinance

At long last, West Penn Township unveiled a draft of the water extraction section of the zoning ordinance Tuesday at the township’s planning commission meeting.

Township solicitor Paul J. Datte told the crowd of about 20 that the public can comment at the board of supervisors meeting at 6:30 p.m. Monday.

Datte said the board may make revisions, and from there, it will go to attorney Jordan Yeager’s firm for review.

“The draft was circulated at the end of last week,” Datte said. Copies were presented to members of the planning commission and water extraction committee.

Datte said that groundwater or spring water withdrawal of more than 10,000 gallons per day will be added as a use permitted by special exception in all zoning districts.

In addition, he said that groundwater or spring water withdrawal of more than 10,000 gallons per day for off-site use will be limited to a use permitted by special exception in the Extractive Industrial District.

Planning commission member Robert Miller told Datte he believes the ordinance was done well.

“You kind of covered it both ways,” Miller said. “If A doesn’t cover it, B covers it.”

Public comment

Ted Rosen, chairman of the West Penn Township Water Resource & Planning Steering Committee, thanked counsel.

“I want to acknowledge and thank you for defining water as a mineral, and permitting water withdrawal only in the Extractive Industrial District,” Rosen said. “This definition and location are supported by science and are consistent with the township’s goal of preserving its rural, farming character and natural beauty.”

However, Rosen said he disagreed with two critical provisions of the draft; the first being that the proposal is for the application to be treated as a “special exception” subject to approval only by the zoning hearing board, which he said is an appointed body.

“Its proceedings do not include public comment,” Rosen said. “Instead, I urge you that the application be treated as a “conditional use,” subject to a public review and approval by the Planning Commission and board of supervisors.”

Further, Rosen said that the supervisors are the only elected officials in the township, and as such are the highest legal and political authority in the township.

“Given the controversial history of water extraction in our township — especially now after five contentious years in the public eye — commercial water withdrawal applications must be given the widest possible public review,” he said. “Water is a strategic resource to our township. Commercial water withdrawal applications must be given the maximum of public scrutiny and sunlight. Conditional approval guarantees that.”

Definitions

Secondly, Rosen said the township proposes using acres to define a lot.

“Water does not know acres; it follows geology defined in terms of “watershed,” “geologic sphere of influence,” “primary recharge area,” and “secondary recharge area,” he said. “The applicant must be required to own or lease the entire watershed, defined as the geologic sphere of influence, combining the primary and secondary recharge areas. Many other townships have this requirement.”

Rosen said he believes the draft provisions overlook two other important elements: It does not include a drought management plan, and that the draft is “nearly silent and offers no details about backup financial performance guarantees, insurance, escrow accounts and reimbursement of township expenses for outside expertise necessary to evaluate applications.”

Rosen said he’s troubled by a reference to an arbitration process in the event a homeowner cannot get his or her well fixed due to the applicant’s water extraction activities.

“Arbitration is not an option here,” he said. “Action is.”

Resident Larry Stival said he believes the definition of lot ought to be parcel.

Resident Karen Moyer said she agreed with Rosen concerning distance to neighboring properties.

“I think the distance to neighboring properties needs to be addressed,” Moyer said.

Jay Land, president and owner of Ringgold Acquisition Group II, told all those involved that he appreciates all the hard work that was put into this.

Land then asked if there was a way to objectify “so that these standards are objective instead of subjective?”

“I prefer to come to the township and say before I spend money, is it a permitted use or a nonpermitted use,” Land said.

Resident Dave Lapinsky said he understands this is a difficult ordinance to develop because they’re dealing with the constitutional rights of clean air and clean water, and there are businesses that want to come into the township.

“I think it’s a step in the right direction,” Lapinsky said. “I think a few things could be tweaked.”

Lapinsky said one of his main concerns was the question of special exception or conditional use.

“My suggestion is to look at this as a conditional use,” he said.

Datte said that both subsections are treated as special exceptions, and noted that it’s up to the board of supervisors.

Resident Jamie Schellhammer said he hopes they deeply consider “all of the holes in the draft.”

About the ordinance

The West Penn Township groundwater or spring water withdrawal zoning provisions include two sections, 31 A and B.

Section A:

• Covers groundwater or spring water withdrawal of more than 10,000 gallons per day, regulating removal of an average over any 30-day period or more than 10,000 gallons per day.

• The application would be approved if it will not affect wells of neighboring properties, nor aquatic habitats of surface waters, nor agricultural yields. Drought conditions need to be included. A report should include: testing rate, testing duration, source water level monitoring, regional water level monitoring, notifications/contingencies, withdrawal rate limitations, and the hydrogeologic report.

• The applicant should assure water withdrawal will not impact the water quantity and quality of neighboring consumers and surface water bodies. Monitoring is required.

• If withdrawal causes a significant decline in the quantity and/or quality of neighboring water supplies, the applicant will correct the problem. The applicant should have an escrow fund to address problems.

• Minimum lot area is 100 acres or 5 acres for each 10,000 gallons per day of water withdrawal.

Section B:

• Groundwater and spring water withdrawal involving removal of an average over any 30-day period or more than 10,000 gallons per day should not apply to water used by a principal agricultural use or golf course within the township or on-site consumption. If the water is utilized for uses on adjacent lots or as part of a public water supply system, it is not to be considered off-site use.

• If the water will be trucked off-site, the area used for loading or unloading of trucks is to be located immediately adjacent to a state roadway with a minimum 500-foot setback from any adjacent lot occupied by a dwelling.

• Any water treatment facilities or storage of chemicals should have a minimum 500-foot setback from any adjacent lot occupied by a dwelling.

• Any bottling or processing operations are to be considered a distinct use in an area of allowed use for “food or beverage manufacturing.”

• The application for special exception should include a drawing to-scale showing the boundaries, proposed location of the water withdrawal facilities, location of any roads within or abutting the lease or property, location of occupied structures on the property and adjacent properties, and septic systems and wells within 500 feet of the subject property boundary.

• The application for special exception should include a map identifying the roadways utilized by any trucks, tankers, or similar vehicles to haul or ship the water.

• Any areas used for loading and unloading or water tanker trucks should be set back a minimum of 500 feet from any adjacent residential lot.

• A landscape buffer and adequate screening around any truck loading site is required.