6.2.A&B SR 10-18-2010REQUEST FOR ACTION
TO ITEM NUMBER
Ci Council 6.2.A&B
AGENDA SECTION MEETING DATE PREPARED BY
Public Works October 18, 2010 Troy Adams, P.E. - ERMU Director
of O erations
ITEM DESCRIPTION REVIEWED By
Water Ordinances
A. Water Use Restrictions REVIEWED BY
B. Private Wells for Domestic Use
ACTION REQUESTED
Council motion approving:
A. The revision of Chapter 78 UTILITIES Article II WATER SYSTEM Division 5
RESTRICTIONS AND ENFORCEMENT Section 78-51 WATER USE RESTRICTIONS.
B. The addition of proposed new Section 78-26 PRIVATE WELLS FOR DOMESTIC USE to
Chapter 78 UTILITIES Article II WATER SYSTEM Division 2 CONNECTION TO WATER
SYSTEM.
BACKGROUND/DISCUSSION
Water is one of our most valuable resources. As a statutory city, Elk River has the authority and
responsibility to our residents and water system customers to protect the integrity of the water system
and to ensure adequate water supplies to meet the health, safety, and welfare needs of our residents as
shown through Minnesota Statute:
Minn. Stat. 412.221 Subd. 11.Waterworks. The council shall have power to provide and by
ordinance regulate the use of wells, cisterns, reservoirs, waterworks, and other
means of water supply.
Minn. Stat. 412.221 Subd. 31.Sewer and water connections. The council shall have power by
ordinance to require the owner of any property abutting on or adjacent to any street
in which sewer and water mains have been laid to install a toilet in any dwelling or
commercial establishment upon such property and connect it with the sewer and
water mains and in default thereof to provide for the installation of such toilet and
charging the cost against the property as a special assessment.
Minn. Stat. 412.221 Subd. 32.General welfare. The council shall have power to provide for
the government and good order of the city, the suppression of vice and immorality,
the prevention of crime, the protection of public and private property, the benefit of
residence, trade, and commerce, and the promotion of health, safety, order,
convenience, and the general welfare by such ordinances not inconsistent with the
Constitution and laws of the United States or of this state as it shall deem expedient.
In the recent year, there has been an increase in the number of private wells drilled within the urban
services district where domestic water is available. These private unregulated wells create risk to the
integrity and safety of the water system. In order to provide local control over these risks, additional
ordinances are needed. Attached are two ordinances that would establish the local control and authority
specific for two known threats to the integrity and safety of the domestic water system. The first is a
revision to the existing Section 78-51 WATER USE RESTRICTIONS providing a wider scope of
authority and enforceability for invoking water use restriction in cases of emergency. This scope would
now include private wells within the City. The second is a proposed new ordinance, Section 78-26
PRIVATE WELLS FOR DOMESTIC USE, which would restrict new private wells from being drilled
within the City where domestic water is available. The State has just confirmed that the authority to
regulate well drilling is that of the City. Attached is a letter from the League of Minnesota Cities which
announces this recent State confirmation.
FINANCIAL IMPACT
When violations of the revised and the proposed sections occur and the civil penalty is applied or
misdemeanor offense is pursued, there would be cost associated with City staff time. However, the
overall financial impact to the City is believed to be minimal.
ATTACHMENTS
^ Proposed revision of Chapter 78 UTILITIES Article II WATER SYSTEM Division 5
RESTRICTIONS AND ENFORCEMENT Section 78-51 WATER USE RESTRICTIONS.
^ Proposed new Section 78-26 PRIVATE WELLS FOR DOMESTIC USE to Chapter 78
UTILITIES Article II WATER SYSTEM Division 2 CONNECTION TO WATER
SYSTEM.
Letter from the League of Minnesota Cities "State Confirms City Authority to Regulate Well
Drilling", dated October 13, 2010.
^ On Friday afternoon City Attorney Peter Beck added an additional alternative ordinance at
the request of Utilities Commissioner Dietz.
Action Motion by Second by Vote
Follow Up
ORDINANCE NO. 10-_
CITY OF ELK RIVER
AN ORDINANCE OF THE CITY OF ELK RIVER AMENDING SECTION 78-51
OF THE CITY OF ELK RIVER CODE OF ORDINANCES TO PROVIDE THAT
WATER USE RESTRICTIONS SHALL APPLY TO ALL PROPERTIES WITHIN
THE CITY WHETHER SERVED BY THE CITY WATER SYSTEM OR BY
PRIVATE WELLS
Findings of Fact
The City Council of the City of Elk River finds that it is necessary, from time to
time, to impose restrictions on the use of water within the City to ensure adequate water
supplies to meet the health, safety and welfare needs of the City and its residents.
The City Council further finds that it is necessary to apply these water restrictions
to all properties within the City, whether those properties are served by the City water
system or by private wells, because private wells typically draw from the same aquifers
as the City water system and because it is necessary for enforcement purposes to have
uniform restrictions throughout the City.
THEREFORE, the City Council of the City of Elk River does hereby ordain as follows:
Section 1. That Section 78-51, entitled Water Use Restrictions, of the Elk
River City Code of Ordinances, shall be amended to read as follows:
Section 78-51. Water Use Restrictions.
The Public Utility Commission of the City is hereby authorized to invoke water
use restrictions in cases of emergency to ensure adequate water supplies to meet
the health, safety, and welfare needs of the City and its residents. Such water use
restrictions shall apply to all properties within the City whether those properties
are served by the City water system or by private wells, and shall be invoked by
resolution of the Public Utility Commission, and shall take effect immediately
upon adoption of such resolution. The Public Utility Commission may designate
deleg~e its general manager or water superintendent authority to impose
temporary water use restrictions until the commission can meet to consider a
resolution. The penalties imposed below in Section 78-52 may be invoked upon
publication of the resolution imposing restrictions ' ''' '74 `'"°^°' ^ _.
1. That this Ordinance shall take effect upon publication as provided by law.
Passed and adopted by the City Council of the City of Elk River this day of
2010.
Stephanie Klinzing
Mayor
Attest:
Tina Allard
City Clerk
GP:2841270 vl
ORDINANCE NO. 10-
CITY OF ELK RIVER
AN ORDINANCE OF THE CITY OF ELK RIVER AMENDING CHAPTER 78
OF THE CITY OF ELK RIVER CODE OF ORDINANCES TO ADD NEW
SECTION 78-26 PROHIBITING PRIVATE WELLS FOR DOMESTIC USE ON
PROPERTIES WITHIN THE CITY SERVED BY THE CITY WATER SYSTEM
Findings of Fact
The City Council of the City of Elk River finds that it is necessary, to protect the
integrity of the City Water Utility and to ensure adequate water supplies to meet the
health, safety and welfare needs of the City and its residents, to prohibit the installation
and restrict the use of Private Wells for Domestic Use on properties served by the City
water system.
THEREFORE, the City Council of the City of Elk River does hereby ordain as follows:
Section 1. That Chapter 78 of the Elk River City Code of Ordinances shall be
amended to add new Section 78-26 as follows:
Section 78-26. Private Wells for Domestic Use.
a. The installation of new Private Wells for Domestic Use on any property to
which City Water Utility Service is available is prohibited, subject to the
exceptions set forth in Section 78-26 (d).
b. Private Wells for Domestic Use which:
(i) Were in existence on October 18, 2010 and are located on property
to which City Water Utility service was either available on October 18,
2010 or subsequently becomes available; or
(ii) Are installed subsequent to October 18, 2010 on properties to
which City Water Utility Service is not available at the time of installation
but subsequently becomes available;
May remain in use, subject to the restrictions set forth in Section 78-26(c).
c. Private Wells for Domestic Use which fall within Section 78-26(b):
(i) May be used for domestic drinking water use, provided they
comply with all applicable regulations including but not limited to 42
USCS §300f- 300j-26 and Minn. Stat. §§144.381 to 144.387; and
(ii) May be used to irrigate a single buildable Lot, as defined in this
Code, subject to the water use restrictions set forth in Section 78-51; and
(iii) May not be used for any other purpose, subject to the exceptions
set forth in Section 78-26(d), including the irrigation of more than one
buildable Lot.
d. "Private Wells for Domestic Use" shall mean any well not owned by the
City Water Utility which is drilled or installed for potable water or irrigation
purposes. "Private Wells for Domestic Use" shall not include wells drilled for
such purposes as dewatering, groundwater monitoring, heating or cooling,
elevator borings or environmental bore holes.
Section 2. That this Ordinance shall take effect upon adoption
Passed and adopted by the City Council of the City of Elk River this 18th day of October,
2010.
Stephanie Klinzing
Mayor
Attest:
Tina Allard
City Clerk
GP:2861876 vl
State Confirms City Authority to Regulate ~~Tell Drilling Page 1 of 2
~~
LEAGUE 3F
fy~IN 1~f ES4TA
~IT1ES
State Confirms City Authority
to Regulate Weil Drilling
Cities have the ability to restrict or prohibit the drilling of wells in city boundaries through a
specific ordinance or the city zoning code.
(Published Oct 13, 2D10)
After several -nonths of communication and discussion with the League and other pat-ties about the legal
basis for city authority, the A~iinnesota Department of Health {_N1DH) has agreed that that no more letters
will go out from the department challenging city authority to regulate ~~'ells by ordinance or through city
zoning code. This is a dramatic change from previous practice.
Over the past 20 years; cities, well drillers, and MDH have often disagreed about city statutory autltori.ty
to prohibit or restrict well drilling by ordinance. The League has long argued that cities have specific and
long-standing statutory authority to regulate wells and water supplies in city boundaries. (Minnesota
Statutes, section X12.221, SUbdlti'iSI0i1 1.~) {Iinkto: https:l~tt~trtm.recisor.n:n.gov/statutes/?id=412._21;~'stat.472.221.1IJ
Cities may also regulate where wells are located in a city, if at ail, through zoning as established in both
statute and case law. (1flirvTesota Statutes, section 455.357, subdi~'ision 1) f~inkro:
hops:/h,nrt+~.rerisor.mn.gov/statutes/?id=462357~stat.462.3.i7.1) HOWOVer, l`t1DH 1S gtVe?] SpeCIf1C poWerS over teCltl]tCal
aspects of constructing wells, the Iicensulg of well drillers, and sealing wells.
This issue became more controversial over the past year as cities began receiving letters froth the state
demanding that they cease enforcement of ordinances restricting well drilling. Iw'Iany property ov«'tiers
within city boundaries have wanted to drill their own irrigation wells within municipal water utility
service areas to avoid paying city utility rates, especially once water consexvation xate structures and
sununer water use requirements were applied, as required by the state Legislature.
This recognition of city authority by MDIi means that cities may continue to adopt and enforce
ordinances restricting or prohibiting well drilling within their jurisdiction. Cities do not, however, have
the authority to regulate the construction, maintenance; or sealing of wells. There are also «'ells used for
monitoring, dewatering for pollution cleanup, and other purposes that likely will still be allowed in
appropriate circumstances. The League will work with 1VIDH to provide guidance to cities on how best
to craft ordinances related to wells.
Read the current issue of the Cities Bulletin (Linrcto: ttrp:/i„~~,~,v.tn:~.arg~page~ti~;,tes-b„nerin-ne,rsrerrer~s~J
Your Ll4'IC Resource
Contact Craig Johnson
iGR Representative
(651) 281-1254 or (800) 425-1122
cjohnson@lme.org (Link to: mailto;cjohnson~mo.org)
http://www.lmc.org/page/l/well-drilling jsp 10/13/2010
Allard, Tina
From: Beck, Peter K. <Peter.BeckC«~gpmlaw.com>
Sent: Friday, October 15, 201012:43 PM
To: Adams, Troy; Berg, David,~~~~
~c: Allard, Tina; Johnson, Lori
Subject: Well Drilling Ordinances
Attachments: GPDOCSl-#2861876-vl-Elk_River_Ordinance_re_Private_Wells_.DOC; GPDOCSl-#
2862663-vl-Elk_River_Ordinance_re_Private_Wells_for_Domestic_Use.DOC
John asked that I prepare an alternate version of the well drilling ordinance that would not restrict the use of existing wells.
The League of Cities also got back with a couple non-substantive commen s. -
Attached is a revised version of the ordinance that restricts use as welt as installation; and an alternate ordinance that just
restricts installation. Both versions should go to the Council.
Peter Beck -
Attarney Q
«GPDOCS1-#2861876-v1-Elk_River Ordinance_re_Private_Wells_.DOC» «GPDOCS1-#2862663-v1-
Elk_River_Ordinance_re_Private_Wells_for Domestic_Use.DOC»
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ORDINANCE NO. 10-
CITY OF ELK RIVER
AN ORDINANCE OF THE CITY OF ELK RIVER AMENDING CHAPTER 78
OF THE CITY OF ELK RIVER CODE OF ORDINANCES TO ADD NEW
SECTION 78-26 PROHIBITING PRIVATE WELLS FOR DOMESTIC USE ON
PROPERTIES WITHIN THE CITY SERVED BY THE CITY WATER SYSTEM
Findings of Fact
The City Council of the City of Elk River finds that it is necessary, to protect the
integrity of the City Water Utility and to ensure adequate water supplies to meet the
health, safety and welfare needs of the City and its residents, to prohibit the installation of
Private Wells for Domestic Use on properties served by the City water system.
THEREFORE, the City Council of the City of Elk River does hereby ordain as follows:
Section 1. That Chapter 78 of the Elk River City Code of Ordinances shall be
amended to add new Section 78-26 as follows:
Section 78-26. Private Wells for Domestic Use.
a. The installation of new Private Wells for Domestic Use on any property to
which City Water Utility Service is available is prohibited, subject to the
exceptions set forth in Section 78-26 (c).
b. Private Wells for Domestic Use in existence on October 18, 2010, and
Private Wells for Domestic Use installed subsequent to October 18, 2010 on
properties to which City Water Utility Service is not available at the time of
installation, may remain in use provided they comply with all applicable
regulations, including but not limited to 42 USCS §300f - 300j-26 and Minn.
Stat. §§144.381 to 144.387.
c. "Private Wells for Domestic Use" shall mean any well not owned by the
City Water Utility which is drilled or installed for potable water or irrigation
purposes. "Private Wells for Domestic Use" shall not include wells drilled for
such purposes as dewatering, groundwater monitoring, heating or cooling,
elevator borings or environmental bore holes.
Section 2. That this Ordinance shall take effect upon adoption.
Passed and adopted by the City Council of the City of Elk River this 18th day of October,
2010.
Stephanie Klinzing
Mayor
Attest:
Tina Allard
City Clerk
GP:2862663 vl