Drought Restrictions During State or Federally Declared Droughts

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

As of late summer, administrative agencies of the state of New Hampshire are considering declaring a state or condition of drought in, at least, southern New Hampshire. NHMA has received several inquiries regarding steps that municipalities should consider taking to conserve municipal and residential water resources.

Public Water Systems

RSA 38:26 provides that municipalities with public water systems have the power to adopt rules regarding the use of municipal water. In those municipalities, the governing body, or the board of water commissioners if the system is run by water commissioners, may adopt such ordinances and bylaws relating to the system or structures as required
for proper maintenance and operation.

The New Hampshire Safe Drinking Water Act, RSA chapter 485, further provides community water systems with the authority to restrict non-essential water use when there is a
threat of demand exceeding supply and to terminate service to customers when customers refuse to follow those restrictions. Env-Dw 503.

Although it is not necessary for municipalities to obtain approval from the New Hampshire Department of Environmental Services (NHDES) prior to enacting restrictions, NHDES has previously provided the ability for public water systems to obtain NHDES written endorsement of water restrictions in order to assist municipalities who face opposition to implementation of such restrictions. It is likely that NHDES’s Drinking Water and Groundwater Bureau will provide this service, if the state declares a state or condition of drought.

Private Water Systems & Commercial Uses

RSA 41:11-d provides that the local governing body may establish regulations restricting the use of water from private wells or public water systems for outdoor lawn watering. Any such restrictions may be implemented after providing notice at least three days in advance of the restrictions going into effect. Notice must be published in a newspaper of general circulation in the community and posted in two public places. The three-day count begins the day after notice is given.

Any restrictions may exclude “grass playing turf of a recreational field, the grass playing surfaces of a golf course, and grass agricultural fields, including fields used for the production of sod,” at the option of the governing body.

Publication of the entire regulation is not necessary. A summary of the regulation is sufficient, if it indicates where the full text of the regulations can be viewed. NHDES has drafted a model water use restriction ordinance for water systems owned or operated by municipalities or village districts and a model regulation for lawn watering restrictions.

These ordinances may be downloaded at their website: https://www.des.nh.gov/organization/divisions/ water/dam/drought/.

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.