[CPEO-MEF] "Sole Source Aquifer" explained

[Lenny Siegel <lsiegel@cpeo.org>]

[The April, 2002 edition of COMING CLEAN, the newsletter of the Aberdeen
Proving Ground Superfund Citizen's Coalition (APGSCC), contained an
article explaining the legal significance of "Sole Source Aquifer"
designation. Like many others (I assume), I've often heard and
occasionally used the term, but I never knew much about it. We are
therefore reprinting the entire article with the permission of the
University of Maryland Environmental Law Clinic, which prepared the explanation.-LS]



The Legal Aspects of Protecting the Perryman Aquifer
Under EPA's Sole Source Aquifer Program

In the fall of 2001, APGSCC approached the University of Maryland
Environmental Law Clinic about the possibility of petitioning the U.S.
Environmental Protection Agency (EPA) to designate the Perryman Aquifer
as a Sole Source Aquifer (SSA) under the federal Safe Drinking Water Act
(SDWA).  In obtaining Sole Source Aquifer status from the EPA, APGSCC
hopes to gain a further tool in protecting the underlying groundwater,
and in particular to ward-off future detrimental construction in the
recharge zone of the aquifer.  While clearly not a panacea, SSA
designation has the potential to mitigate the impacts of future
development in Harford County.  The following is a summary of some of
the legal aspects of obtaining SSA status and what may be gained by such
a designation.

What is a Sole Source Aquifer and who may petition to have one designated?

Under the federal Safe Drinking Water Act (42 U.S.C. §300h-3(e)), the
Administrator of the EPA may determine that an underground water supply
is the sole or principal source of drinking water for an area which, "if
contaminated, would create a significant hazard to public health..."  If
such a determination is made, the Administrator may designate the
aquifer as a Sole Source Aquifer.  Designation may come from the
Administrator's own initiative or by a petition by any person, including
individuals, corporations, municipalities, associations, or agencies. 
As such, APGSCC has the authority to petition EPA for a SSA designation
for the Perryman Aquifer.
 
What is Needed to Designate a Sole Source Aquifer?

Three conditions must be present before the EPA Administrator will
designate an aquifer as a Sole Source Aquifer.  First, the aquifer must
be the sole or principle source of drinking water for residents within
the aquifer boundary.  "Sole or principal" means that the aquifer must
supply 50% or more of the drinking water for people living over the
aquifer.  Second, no feasible alternatives can replace the drinking
water supplied by the aquifer should it become contaminated.   Third,
the aquifer boundaries must be clearly definable.  

Determining Sole Source Aquifer status is situation specific, and much
depends on the petition's scientific basis.  Many different factors are
considered, not the least of which is the underlying hydrogeology of the
area that the aquifer covers.  Another question may also be where the
actual borders of the aquifer lie.  Should APGSCC decide to petition the
EPA, the most difficult and timely task in preparing a petition will be
demonstrating the numbers and supplying all the hydrogeologic and
drinking water usage information to support the petition.  In the
petition, all alternate sources of drinking water must be evaluated and
provided.  Citizens from Harford County, for example, draw most drinking
water from one of three sources; two primary wells and the Susquehanna
River.  Even though there is no legally specific limit on the amount of
water drawn from the Susquehanna River, the supply may not be unlimited.
 Under the Susquehanna River Basin Compact, the commission must approve
any projects that have a significant effect on water resources among the
states (i.e. Pennsylvania and Maryland).  

What Does Sole Source Aquifer Status Provide?

Once EPA designates an aquifer as a Sole Source Aquifer, monetary limits
may be placed on "federal financial assistance" for projects that could
contaminate drinking water.  According to the federal Safe Drinking
Water Act (42 USC §300h-3(e)), once SSA designation is obtained,
projects that could contaminate that aquifer may not receive "federal
financial assistance."  According to the EPA, "federal assistance" can
be aid to a project or action that comes through a written agreement by
an agency or instrumentality of the government in the form of contracts,
grants, or loans.  For example, loans from the U.S. Department of
Housing and Urban Development to develop a residential or commercial
area could be subject to the provisions of the SSA designation.  

This protection is limited, however, in that only projects receiving
"federal financial assistance" are subject to review.  Proposed
projects, for example, that are funded entirely by state, local, or
private entities are not subject to EPA review because this is not
considered within the definition of "federal financial assistance." 
More notably, federal projects funded solely with federal funds for
federal agency actions are likewise exempt from the SSA oversight. 
While neither the Safe Drinking Water Act nor federal regulations
implementing the SDWA fully define the scope of "federal financial
assistance" it is EPA's policy that the term does not include funding
for federal agency projects.  Even with all the caveats, however, SSA
status does raise an additional layer of oversight, and in some cases it
may prevent development projects that would contaminate the aquifer.  In
short, although it may not outright stop a project, it will at least put
it within the purview of EPA, which will then work with the project to
mitigate any adverse consequences.  

One success story of SSA designation can be found in Maryland.  In 1998,
the citizens of Poolesville, Maryland successfully petitioned for and
obtained SSA designation from EPA.  Although designation of the
Poolesville aquifer may not have necessarily stopped all development
projects, SSA status provided a useful political tool for citizens in
Montgomery County.  For instance, Poolesville residents have been
successful in facing proponents of certain projects by using SSA status
to set forth the possibility of having to do additional work to address
the aquifer's needs before moving forward on a project.  

In summary, petitioning the EPA to designate the Perryman Aquifer as a
Sole Source Aquifer has both benefits and drawbacks.  The petition
itself will require the gathering of water use information as well as
the hydrogeology of the area.  Should EPA determine to grant SSA status,
EPA is not legally required to review all development projects in an
aquifer's recharge zone.  With this said, however, the SSA designation
can prevent the development of projects receiving "federal financial
assistance."  Finally, the political leverage and clout associated with
SSA status may be the most important part of such a designation.


-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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