Section 1424(e) of the Safe Drinking Water Act: An Effective Measure Against Groundwater Pollution?

John B. Hemphill

Over fifty percent of the drinking water in use today has its source in underground water supplies.¹ These groundwater sources are hydrologically related to surface waters, however, since surface water charges groundwater reservoirs and groundwater feeds springs and surface streams.² Protection of one of these water sources, therefore, is meaningless without concomitant measures to protect the other.

Groundwater aquifers, whose importance has traditionally been neglected under water pollution statutes, in 1974 received partial regulatory protection under § 1424(e) of the Safe Drinking Water Act.³ This article will discuss the section's scope and meaning and will analyze the first application of § 1424(e) by the Environmental Protection Agency (EPA) to protect a groundwater source.

Background

Water collects in large underground reservoirs known as aquifers which can be described generally as follows. A porous geologic formation positioned over a layer of impermeable rock holds water underground like a sink. Portions of the formation lie exposed on or near the surface. This exposed area, called the recharge zone, serves as a conduit whereby streamflow and stormwater from rainfall percolate into the aquifer and replenish its supply. Thus, surface activity in the local watershed as well as surface activity directly over a recharge zone can pollute underground water supplies. Common sources of groundwater pollution are septic tanks, sewage treatment plants, urban run-off, sanitary landfills, and feedlot run-off.⁴ Development in the recharge zone may also cut off avenues of recharge to the aquifer.

Several federal statutes enacted prior to the Safe Drinking Water Act attempted to control pollution in surface waters, but note effectively protected groundwater resources. This deficiency was remedied by a court case, Sierra Club v. Lynn,⁵ which focused congressional attention on the problem of groundwater pollution and served as the catalyst for enactment of the Safe Drinking Water Act. The basis for the litigation was a "new town" development, which was backed by approximately $18,000,000 in Department of Housing and Urban Development (HUD) loan guarantees and which was to be located, in part, over the recharge zone of the Edwards Aquifer in the San Antonio, Texas, area. HUD filed an environmental impact statement under the National Environmental Policy Act (NEPA)⁶ in connection with this loan guarantee. Plaintiffs, who were citizen groups and their local members, sued to enjoin HUD approval of the loan guarantees. Among the contentions advanced by plaintiffs were (1) that the environmental impact statement filed under NEPA insufficiency considered the no-action alternative that HUD not grant loan guarantees, and (2) that the loan guarantees violated the Federal Water Pollution Control Act Amendments of 1972 (FWPCA).⁷

The trial court upheld the sufficiency of the environmental impact statement (EIS), accepting HUD's rationale, expressed in the EIS, that the no-action alternative was unattractive since anticipated uncontrolled development over the recharge zone posed an even greater threat to the aquifer. The court also held that plaintiffs had failed to state a claim under the FWPCA in the absence of issuance of water quality standards for the aquifer by EPA.⁸

Section 1424(e) of the Safe Drinking Water Act — Legislative History and Analysis

A growing concern, amplified by Sierra Club v. Lynn, that the FWPCA inadequately protected drinking water resources, including groundwaters, from contamination,⁹ hastened the enactment of the Safe Drinking Water Act. The major thrust of the Act is to establish a scheme of national primary drinking water standards [6 ELR 50122] for all public water supply systems. These standards specify maximum contamination levels or treatment techniques for all pollutants having any adverse health effect. The states assume primary enforcement responsibility once their enforcement programs are operational and meet EPA approval.

Legislative History

In addition, the Act specifically regulates actions affecting underground sources of drinking water, providing among other things for the establishment of state permit programs for underground injection wells. Section 1424(e) falls within this portion of the Act. Because it was a floor amendment, offered by Congressman Gonzalez (D.-Tex.), § 1424(e) was not considered in committee or discussed in the committee report. Two pages of the Congressional Record contain the only recorded discussion of § 1424(e). Congressman Gonzalez stated that he was introducing the amendment in response to a situation affecting his district, San Antonio, Texas.¹⁰ San Antonio receives its entire water supply from the Edwards Aquifer, a limestone formation with a recharge zone extending over parts of several counties north of San Antonio and covering an area of approximately 2,000 square miles.¹¹ The city of San Antonio is growing rapidly northward, and several large real estate developments had been proposed to be built directly on the recharge zone. Congressman Gonzalez was concerned that state law would not adequately protect the Edwards Aquifer from pollution by these developments.¹² As originally introduced, his amendment read:

(e) If the Administrator determines, on his own initiative or upon petition, that an area has an aquifer, which is the sole or principle drinking water source for the area and which, if contaminated, would create a significant hazard to public health, he shall publish notice of that determination in the Federal Register. After the publication of any such notice, no commitment for Federal financial assistance (through a grant, contract, loan guarantee, or otherwise) may be entered into for any project which the Administrator determines may contaminate such aquifer through a recharge zone.¹³

When the House bill reached the Senate, the Gonzalez Amendment was changed in committee without explanation in the conference report or on the Senate floor. The changes made by the Senate in the text are bracketed:

(e) If the Administrator determines, on his own initiative or upon petition, that an area has an aquifer which is the sole or principal drinking water source for the area and which, if contaminated, would create a significant hazard to public health, he shall publich notice of that determination in the Federal Register. After the publication of any such notice, no commitment for Federal financial assistance (through a grant, contract, loan guarantee, or otherwise) may be entered into for any project which the Administrator determines may contaminate such aquifer through a recharge zone [so as to create a significant hazard to public health, but a commitment for Federal financial assistance may, if authorized under another provision of law, be entered into to plan or design the project to assure that it will not so contaminate the aquifer.]¹⁴

This section, as amended by the Senate, was enacted into law.

Section 1424(e) has three basic provisions: (1) The Administrator of EPA, upon his own initiative or upon petition (including petition of private citizens), can make a preliminary determination that an aquifer is in need of protection from contamination. For the aquifer to qualify for this preliminary determination, it must be shown that: (a) the aquifer is a sole or principal drinking water source for the area, and (b) if the aquifer were contaminated, it would create a significant hazard to public health. (2) After the preliminary determination has been made by establishing the criteria under 1(a) and 1(b), the Administrator of EPA must publish the preliminary determination in the Federal Register. (3) After publication of the notice of preliminary determination, the Administrator may block a commitment for federal financial assistance for any individual project if he determines that the project may contaminate the protected aquifer through a recharge zone so as to create a significant hazard to public health. An exception is provided for commitments of federal financial assistance, authorized under separate law, to fund planning or design so that the project will not contaminate the aquifer.

Analogy to § 1424(a)

Even a cursory reading of § 1424(e)'s provisions reveals several interpretive issues that, lacking much legislative history, must be analyzed by resort to analogous statutory language and court decisions. One of the criteria for protected aquifer status is that the Administrator determine "that an area has an aquifer which is the sole or principal drinking water source for [6 ELR 50123] the area." As noted above, § 1424(e) was essentially special legislation tailored for a specific situation. Because of this, however, the section has a major loophole. For instance, an aquifer that supplies one-fourth of the drinking water needs of a population area would not be considered "the sole or principal drinking water source for the area" and § 1424(e) would seem to offer it no protection. Yet such an aquifer would clearly be meeting an important need and require protection.

The other criterion for protected aquifer status, that it be "an aquifer … which, if contaminated, would create a significant hazard to public health," is ambiguous. Is it presumed that any contamination would create a significant hazard to public health? If not, what level of contamination if required?

These two criteria are addressed to the need for protected aquifer status only from the general perspectives of public importance and vulnerability. They make no mention of any specific threat of contamination from a particular source. In addition, the two-step process raises the troubling implication that contamination of a sole or principal source aquifer might not automatically create a statutory "significant hazard to public health." It appears that contamination of an aquifer which is a sole or principal drinking water source for an area seemingly should create, of necessity, a significant hazard to public health.

Section 1424(a) uses similar language to provide for designation of an area to be protected from underground injection wells¹⁵ if the Administrator finds that the area has a sole-source aquifer "which, if contaminated, would create a significant hazard to public health."¹⁶ The House report to the Safe Drinking Water Act, in discussing § 1424(a), parenthetically defined a significant hazard to public health in this context as being "short of imminent and substantial endangerment."¹⁷ The report, in discussing "imminent and substantial endangerment" states that "while the risk of harm must be 'imminent' for the Administrator to act, the harm itself need not be."¹⁸ Applying these statements in the context of determining protected aquifer status, a significant hazard to public health would require far less than actual harm or a specific threat of harm. This interpretation is consistent with the view that § 1424(e) erects a presumption and contamination of an aquifer would create a significant hazard to the public upon a showing merely of vulnerability and public importance.

Another problem with § 1424(e) is that it contains no time requirement for action to correct the contamination of an aquifer which supplies drinking water, even though such a problem should be remedied with a sense of urgency. No time limit is set for the period during which the determination of protected aquifer status shall be made and notice of the determination published. And up to the time when notice of the determination is published the aquifer is still unprotected. This leaves open the possibility that, inadvertently or to beat the impending cutoff of federal funds, more federal funding commitments could be made for projects affecting a sole-source aquifer after a petition for protected aquifer status was filed and before the Administrator had made and published a determination.

Cumulative Impact: The Ethyl Analogy

Using the House Report's discussion of § 1424(a)'s protection of sole-source aquifers from well-injection of wastes cannot provide the full answer to the meaning of § 1424(e), however. In considering whether to allow federal financial assistance for an individual project under § 1424(e), the Administrator can block funds for any project which may contaminate a sole-source aquifer and which creates a "significant hazard to public health." How much contamination from a specific project is required to create such a hazard? In reviewing individual projects, can the contamination from one project and also all other expected future projects of the same kind be considered cumulatively or must actual contamination be considered in increments until some theoretical cutoff point is reached at which significant hazard to public health arises?

The U.S. Court of Appeals for the D.C. Circuit considered an analogous issue in Ethyl Corporation v. Environmental Protection Agency.¹⁹ The holding and rationale in Ethyl sheds some light on how individual projects should be reviewed under § 1424(e). In Ethyl, plaintiff challenged EPA's authority to issue regulations requiring reduction of lead additives in gasoline. Under § 211(c)(1)(A) of the Clean Air Act, the EPA Administrator is authorized to regulate fuel additives "if any emission products of such fuel or fuel additive will endanger the public health or welfare."²⁰ Lead in the human body can be traced to three major sources. food (ultimately traced to lead in the soil), children's ingestion of lead paint, and lead in the air from automobile emissions. Because there are multiple sources of human exposure to lead, it is virtually impossible to isolate one source and determine its particular effect on humans.

Petitioner in Ethyl contended that the words "will endanger" required a certainty of harm from gasoline lead additives before EPA could issue regulations under § 211(c)(1)(A). The court ultimately upheld EPA's regulations in an en banc decision, stating that certainty of harm was not required and characterizing the phrase "will endanger the public health or welfare" as precautionary language not requiring proof of actual harm before EPA may regulate lead additives. The court also rejected plaintiff's argument that the regulated fuel additive (lead) must be shown to endanger health "in and of itself," stating that because lead enters the human body from multiple sources, the effect of any one source is meaningful only in cumulative terms.

The Ethyl rationale can provide guidance in understanding § 1424(e). The statutory phrase "may contaminate … so as to create a significant hazard to public health" is precautionary. "May contaminate" does not [6 ELR 50124] require actual contamination, but only a possibility that it will occur. Furthermore, a "hazard" is a threat of harm, not an actual injury. A statute allowing for regulation in the face of threatened harm is precautionary. The very existence of such precautionary legislation would seem to demand preventing the perceived threat. Under the situation envisioned by § 1424(e), the perceived threat of aquifer contamination which creates a significant hazard to public health arises from the cumulative impact of multiple sources of aquifer contamination. As with the problem of human exposure to multiple sources of human body lead, the effect of any one source of aquifer contamination is meaningful only in cumulative terms.

Thus, the precautionary language of § 1424(e) and the multi-source nature of the problem the section addresses require that the contamination from the project and also all likely future projects be considered cumulatively by the Administrator in making a decision whether to deny federal financial assistance. To accept the other position of allowing actual incremental amounts of contamination from various projects until reaching that theoretical point where a significant hazard to public health arises would defeat the very precautionary purpose of the statute, i.e., prevention of the perceived threat.²¹

A final point to note is that § 1424(e) reaches only sole-source aquifers threatened by contamination from federally funded projects. Aquifers threatened by contamination from state or privately funded projects are not protected by § 1424(e). Protection in these situations is left to whatever state or local law exists.²² Congressman Gonzalez anticipated that § 1424(e) would have some indirect effect on private projects, however.²³ Federally funded projects are often large and serve as seed growth for private development in an area. Thus, federal prevention of seed growth in a sole source aquifer area will inhibit more extensive private development that could endanger the aquifer.

Application of § 1424(e) — The Edwards Aquifer

To date, § 1424(e) has been applied by EPA in the single instance of designation of the Edwards Aquifer near San Antonio as a sole-source aquifer.

On January 3, 1975, the Sierra Club, League of Women Voters, and the Citizens for a Better Environment petitioned the EPA Administrator to designate the Edwards Aquifer as a sole-source aquifer. Two months later, on March 6, 1975, EPA acknowledged receipt of the petition and requested comments concerning "the geographical boundaries and othat characteristics of the Edwards Aquifer, the recharge zone for that aquifer, the area or areas dependent upon that aquifer for drinking water, the significance of current or anticipated threats to public health that might result from contamination of the aquifer, and the prospects that such contamination will occur as a result of current activities or events that must be anticipated."²⁴

On June 5, 1975, five months after the original petition, EPA held a public hearing in San Antonio on designating the Edwards Underground Reservoir as a "sole-source aquifer" (protected aquifer status) under § 1424(e). EPA requested information relative to the geographic area which should be considered, kinds of pollutants which may contaminate the aquifer, and types of federal projects which would require review for possible contamination. The hearing was attended by many private citizens of diverse backgrounds and opinions. The views expressed ranged from total prohibition of development over the recharge zone, to a middle ground of continuing development combined with pollution control technology, to the other extreme of resistance to any federal intervention along with insistence of the right to sell at a profit under a free enterprise system. There was, however, general agreement that the Edwards Aquifer is the sole source of drinking water for the San Antonio area and that the aquifer if contaminated, would present a hazard to public health.

EPA responded on December 16, almost a year after the petition for aquifer protection, with a Notice of Determination that the Edwards Underground Reservoir had been designated a sole-source aquifer and that, if the reservoir were contaminated, it would create a significant hazard to public health.²⁵ The Notice stated that because "… contamination of a ground water aquifer can be difficult or impossible to reverse, contamination of the Edwards Underground Reservoir would pose a significant hazard to those people dependent on the reservoir for drinking purposes."²⁶ The Notice further discussed what contamination would be required to "create a significant hazard to public health":

EPA does not construe this provision to require a determination that projects planned or likely to be constructed will in fact create such a hazard; it is sufficient to demonstrate that approximately one million people depend on the Edwards Underground Reservoir as their principal source of drinking water and that the Reservoir is vulnerable to contamination through its recharge zone. Obviously, threats to the quality of the drinking [6 ELR 50125] water supply for such a large population would create a significant hazard to public health.²⁷

Thus, EPA has taken the position that once vulnerability of a sole-source aquifer to contamination through a recharge zone is demonstrated there is a presumption that such contamination would create a significant health hazard. This indicates that, in the future, it should not be difficult to secure preliminary protection of a sole-source aquifer by designation under § 1424(e) through the petition mechanism.

Along with the Notice of Determination, EPA issued a set of standards, called Interim Project Review Guidelines for the Edwards Underground Reservoir, Texas Area,²⁸ in order to determine which projects would have their federal financial commitments blocked. The regulations require the Regional Administrator to "review a project upon his own initiative if he determines it (1) is significant enough to be subject to NEPA requirements [preparation of an environmental assessment or environmental impact statement], and (2) is located on the recharge zone." He may, at his discretion, review other projects if there is a petition by any person and if the Regional Administrator decides the project is of a nature that could directly or indirectly cause contamination of the Edwards Underground Reservoir.²⁹ Thus, project review in the streamflow source zone (an upstream headwaters area draining into the recharge zone and contributing over 90 percent of the recharge flow to the reservoir) is discretionary and might be possible only after a citizen petition is filed, even though events in the streamflow source zone have great potential to contaminate the aquifer.

However questionable from a resource protection standpoint the wisdom of EPA's position on reviewing projects not directly over the recharge zone may be, that position is permissible under the statute as drafted. The second sentence of § 1424(e) does not require review of all federally-funded projects which could affect a designated aquifer. Rather, the Administrator's authority is phrased in terms of power to block funds "for any project which [he] determines may contaminate" the aquifer. It would be more within the spirit of the law for the Regional Administrator to review projects in the streamflow source zone as well when those projects were significant enough to be subject to NEPA requirements.

EPA also stated that it "will not be concerned with reviewing minor actions having an insignificant impact on the quality of a reservoir such as individual home mortgage loans (i.e., Farmers Home Administration loans, Veterans Administration loans, and others)."³⁰ While EPA seems to consider that such "minor actions" cannot create a significant hazard to public health, the availability of such loans on an individual basis can determine the success or failure of an entire subdivision and thus encourage large-scale privately financed development over a recharge zone. Refusal to review such actions is no doubt based in part on a legitimate concern that the agency has insufficient personnel to review each FIIA mortgage. But EPA could draft procedures to consider the potential cumulative effects of the availability of such loans on a protected aquifer at the time availability is first considered for a development on or affecting the acquifer's recharge zone.

The guidelines for interim project review for the Edwards Underground Reservoir list the following factors which are to be considered in reviewing individual projects: (1) the extent of possible health hazard to the public; (2) planning, design, construction, operation, maintenance, and monitoring measures included in the project which could prevent or mitigate the possible health hazards; (3) the extent and effectiveness of state or local controls over possible contaminant releases to the Edwards Underground Reservoir; (4) the expected benefits of the project; and (5) the cumulative impacts of the proposed project.³¹

The fourth factor, expected benefits of the project, has no bearing on whether a project may contaminate an aquifer so as to create a significant hazard to public health, and is nowhere mentioned in § 1424(e). This introduction of a cost-benefit calculus under which projects that entail some amount of contamination and a large number of anticipated benefits might be allowed seems totally unwarranted under the statute.

Nor do the factors which the guidelines set forth for individual project review go beyond considering each project in an isolated context, even though the contribution of each project toward creating a "significant hazard to public health" becomes evident only by considering the cumulative impact of multiple sources of contamination. EPA is, therefore, not fully using the authority granted it under § 1424(e) to consider projects in a cumulative context.

Conclusion

Section 1424(e), while it provides EPA with the tools for protecting certain underground water supplies from contamination, clearly leaves many more groundwater reservoirs outside its protective scope.The section was, essentially, special legislation tailored for a specific situation: protection of the Edwards Aquifer in Texas. The limitation of protection to "sole or principal drinking water sourcec aquifers should be legislatively removed, since contamination of any aquifer providing a significant portion of a city's drinking water clearly presents a significant hazard to public health.

Time limits should also be established within the section to create a sense of administrative urgency. The actual protection of the Edwards Aquifer by designation and published notice was provided almost a full year after the protection was sought by petition. To remedy such delays, an aquifer could be provisionally protected from the time a petition for designation under § 1424 (e) was received by EPA.

At the enforcement level, EPA is not using the full extent of its authority under § 1424(e) to deny federal financial assistance for projects which may contaminate a designated aquifer. The phrase "may contaminate … so as to create a significant hazard to public health" is precautionary and requires consideration of a proposed project not individually, but in the context of the [6 ELR 50126] cumulative impact of multiple sources of contamination. Furthermore, EPA should review those projects in the streamflow source zone which are subject to NEPA requirements as well as projects located in the recharge zone itself.

The purpose of § 1424(e) is a limited one: to prevent the federal government from sponsoring or encouraging, in any way, activities which will result in contamination of groundwater drinking supplies. Additional protection from groundwater contamination by non-federally sponsored activity must come from future legislation.

Appendices

A: Causes of Groundwater PollutionSeptic tanks are one possible source of groundwater pollution. Septic tanks are being used today on a major scale in the United States, particularly on the periphery of large municipalities where new subdivisions have outdistanced central sewage collection system extensions. Sewage is placed in an underground tank and allowed to undergo anaerobic metabolism. The anaerobic bacteria convert some of the solid organic matter into liquids which diffuse out from the tank into the surrounding soil. Most of the microbial activity occurs in the intermediate liquid zone where the products of metabolism as well as the microorganisms are periodically washed out into the leaching field. This leaching field is an integral part of the septic tank system and its size is dependent upon the soil characteristics. Where the soil layer above the fractured rock of an aquifer recharge zone is very thin, the leachate liquid from a septic tank will reach groundwater supplies before any biological treatment efforts take place in the system.

Another possible source of groundwater pollution is municipal sewage treatment systems. Municipal sewage treatment plants discharge sludge wase and effluents. Although in many cases the effluent is treated, it still may not be of as good a quality as the groundwater. In such cases, discharge of the effluent over the recharge zone of an aquifer will downgrade the quality of the groundwater. Sewer lines which are not water tight are subject to leakage, another contributor to groundwater pollution.

Urban runoff, which is stormwater drainage from an urban area after a rainstorm, contains several types of contaminants, both organic and inorganic. The pollutants found in the runoff come mainly from motor vehicles, atmospheric fallout, pets, vegetation, litter, spills, and anti-skid compounds (sodium chloride and calcium chloride). Runoff from the first hour of a moderate to heavy storm can contribute more pollutional load than raw sewage. Thus, allowing such runoff to flow directly over an aquifer recharge zone or drain into a stream which then flows over a recharge zone could seriously degrade groundwater quality.

Sanitary landfills can pollute groundwater supplies in two ways. First, water percolating through the landfill can form a leachate, affecting an aquifer in the same way as septic tank leachate, described above. Second, surface runoff waters passing over a landfill may become contaminated and then drain into a stream which flows over an aquifer recharge zone.

Feedlots are a source of high strength organic waste, estimated to have a biochemical oxygen demand five times greater than that of domestic raw sewage. Furthermore, cattle feedlot litter and runoff have been shown to contain salmonella bacteria. Thus, any feedlot over an aquifer recharge zone or in the watershed of a stream flowing into a recharge zone poses a serious threat of groundwater pollution.

B: Technical Description of Edwards Underground Reservoir^**

The Edwards Underground Reservoir is located in south central Texas and lies within the Edwards Plateau and Western Gulf Coastal Plain physiographic provinces which are separated along the Balcones fault zone.

In the San Antonio Area the Edwards Limestone of Lower Cretaceous age immediately underlies the land surface in the uplands. With an average thickness of about 350 feet, the limestone forms a resistant cap rock that dips with the land surface to the south and southeast. The formation ranges from a dense hard limestone where it is unaltered to a porous rock with solution cavities forming underground caverns and interconnected channels which tend to follow rock fractures associated with faulting. Rainwater readily infiltrates into the formation. Erosion has cut deeply into the Edwards Plateau in the headward areas of the Guadelupe, Medina, Sabinal, Frio and Nueces Rivers. The massive Edwards Limestone forms prominent bluffs capping the valley walls and edges of the plateau. Where the Edwards Limestone has been cut through by erosion, springs occur in scattered locations in the basal portion of the cap rock causing partial drainage of the ground water in the Edwards Limestone. This effluent seepage tends to sustain the flow of the receiving streams.

The Edwards Limestone (fault zone) aquifer is a major waterbearing unit extending in a narrow strip in the Balcones Fault Zone from near Brackettville in Kinney County, eastward through parts of Uvalde, Medina, Bexar and Atascosa Counties and northeastward through parts of Comal, Hays, Guadalupe, Travis and Williamson Counties. The part of the Edwards Limestone (fault zone) aquifer supplying drinking water for the San Antonio area, commonly referred to as the Edwards Underground Reservoir (or the Edwards Aquifer), is a distinct hydrologic unit extending from a groundwater divide near Brackettville in Kinney County to a groundwater divide near Kyle in Hays County. The Edwards Underground Reservoir includes by far the most important water-bearing rock units in [6 ELR 50127] the San Antonio Area in terms of total capacity and total water withdrawals for municipal, industrial, and agricultural supply. This aquifer is the source of the largest freshwater springs in Texas.

The Balcones fault zone and the Edwards Underground Reservoir generally coincide geographically, geologically and hydrologically because the fault system is the major structural control in the natural movement of groundwater within the fault zone. The faults range in length from hundreds of yards to about 35 miles, are generally parallel to each other, travel in a northeast direction and dip to the southeast.

The Edwards Underground Reservoir is not a homogenous rock formation allowing for groundwater movement in all directions with equal readiness throughout the aquifer. Rather, a distribution of rock voids has been developed through leaching, fracturing and faulting. These solution channels, cavities, joints and faults form a complex underground network or system of more or less interconnected rock openings that allow for the unequal accumulation and passage of groundwater. Movement of groundwater through this system is controlled by the degree of interconnecting of voids within the aquifer and within the rocks overlying and underlying the aquifer. The direction of movement reflects shifts in the hydraulics of the aquifer in response to recharge and discharge.

Although about 10 percent of the recharge of the Edwards Underground Reservoir is the result of direct infiltration from precipitation on the aquifer outcrop in the Balcones fault zone, about 90 percent is primarily from seepage from streams. Aquifer recharge is closely related to streamflow. Natural discharge from the Edwards Underground Reservoir occurs in the form of numerous springs.

Water from the Edwards Underground Reservoir occurs in two principal zones, a freshwater zone and a saline-water zone that parallel each other and extend ease-west across the San Antonio area. The saline-water zone is immediately south of this freshwater zone. Its northern boundary is the "bad-water" line. In the freshwater zone the edwards Underground Reservoir commonly yields hard to very hard calcium bicarbonate water of a quality suitable for domestic, municipal and agricultural water supply and for many industrial uses with little or no pretreatment. The presence of saltwater in the deeper downdip part of the Edwards Underground Reservoir is a potential source of pollution of adjacent freshwater zones. The danger of saltwater migration may arise from sustained large groundwater withdrawals causing hydraulic pressure differentials south of the metropolitan well fields.

1. Keynote address by Dr. Jay H. Lehr, Second National Ground Water Quality Symposium, Denver Colorado, September 25, 1974.

2. H. McGuinness, The Role of Ground Water in the National Water Situation 78 (U.S. Geological Survey, Water-Supply Paper 1800, 1963).

3. P.L. 93-523, 42 U.S.C. § 300h-3(e) (Supp. 1976), ELR 41136. See text at note 14 infra.

4. See Appendix A, 6 ELR 50126, for a detailed disucssion of these pollution sources.

5. 364 F. Supp. 834, 4 ELR 20110 (W.D. Tex. 1973), aff'd in part and rev'd in part, 502 F.2d 43, 4 ELR 20844 (5th Cir. 1974).

6. 42 U.S.C. §§ 4321-47 (1970), ELR 41009.

7. 33 U.S.C. §§ 1251-1376 (Supp. 1976), ELR 41101.

8. Sierra Club v. Lynn, 502 F.2d 43, 4 ELR 20844 (5th Cir. 1974), aff'g in part and rev'g in part 364 F. Supp. 834, 4 ELR 20110 (W.D. Tex. 1973). A more recent case, United States v. GAF Corp., 389 F. Supp. 1379, 5 ELR 20581 (S.D. Tex. 1975), is even more disturbing in its suggestion that the FWPCA does not apply to groundwaters. There, the federal government sought to enjoin, under the FWPCA, the drilling of wells for subsurface disposal of organic chemical wastes by injection without EPA approval. The court dismissed the suit for lack of jurisdiction stating that there had been no discharge of a pollutant within the meaning of 33 U.S.C. § 1311(a). Since "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters …" by 33 U.S.C. § 1362(12), the court held on the basis of legislative history that underground waters which have not been alleged to flow into or otherwise affect surface water were not included within the term "navigable waters."

9. See H.R. Rep. 93-1185, 1974 U.S. Code Cong. & Admin. News 6486, accompanying the Safe Drinking Water Act. The report acknowledges that the FWPCA's restrictive definition of the term "pollutant" might prevent it from protecting groundwater. The report also doubts whether the FWPCA authorizes any regulation o deep well injection of wastes not carried out in conjunction with a discharge into navigable waters. EPA has recently proposed regulations under the Safe Drinking Water Act that would control deep well injection. 41 Fed. Reg. 36730 (Aug. 31, 1976), summarized at 6 ELR 10231.

10. 120 Cong. Rec. H10814 (daily ed. Nov. 19, 1974).

11. See Appendix B, 6 ELR 50126, for a description of the Edwards Underground Reservoir.

12. While not typical of all state environmental regulation of water quality, the efforts of the Texas Water Quality Board (TWQB), even after § 1424(e) focused more attention on the Edwards Aquifer, are certainly representative of a basic problem in protection of water resources. TWQB Order No. 75-0128-20 was adopted in January 1975 in response to criticism of laxity in protection of the Edwards Underground Reservoir. Nothing in this order restricts the kinds of industries allowed to locate over the aquifer; certainly an accidental spill of petrochemicals on the recharge zone would cause serious ground water contamination even if the industry had a waste disposal system complying with the order. Furthermore, the order provides no specific regulation for the streams not over the recharge zone but whose waters flow onto the recharge zone. Instead, the order makes a general statement to the effect that it will be the policy of the TWQB to exercise surveillance and control over all streams flowing across the recharge zone. This creates quite a gap in the protection, for streamflow from off the recharge zone accounts for a large percent of the aquifer's recharge. Consider the ambiguous remark made by Hugh Yantis, while speaking for the TWQB as Executive Director at the EPA hearing in San Antonio on June 4, 1975: "… there are some activities that are absolutely prohibited in the Order [No. 75-0128-20]. It doesn't mean they will never take place, it simply means that people, under the law, have a right to file an application."

13. 120 Cong. Rec. H10814 (daily ed. Nov, 19, 1974).

14. 120 Cong. Rec. S20235 (daily ed. Nov. 26, 1974).

15. See note 9, supra, for a discussion of underground injection wells.

16. 42 U.S.C. § 300h-3(a) (Supp. 1976).

17. House Report, supra note 9.

18. Id. at 6488 (emphasis added).

19. __ F.2d __, 6 ELR 20267 (D.C. Cir. Mar. 19, 1976), cert. denied, 44 U.S.L.W. 3715 (June 14, 1976).

20. 42 U.S.C. § 1857f-6c(c)(1)(A), ELR 41214-15.

21. For a differing view on the meaning of § 1424(e), see Wheatley & Castaneda, Protection of Underground Drinking Water Supplies: The Gonzalez Amendment to the Safe Drinking Water Act, 8 St. Mary's L.J. 40 (1976). Wheatley, who represented San Antonio developers opposing designation of the Edwards Aquifer under § 1424(e), urges a very limited reading of the section. He asserts that before an aquifer can be designated as a protected aquifer, it must either be actually contaminated or the likelihood of its contamination must be raised to the level of certainty. He relies heavily on the panel decision by the District of Columbia Circuit Court of Appeals in Ethyl Corp. v. EPA, 5 ELR 20096 (D.C. Cir. 1975), which was reversed by the court's en banc decision, __ F.2d __. 6 ELR 20267 (D.C. Cir. Mar. 19, 1976). The article also equates "hazard" with harm, losing sight of the fact that a hazard is only a risk of harm. Section 1424(e) does not discuss harm to an aquifer, but only a hazard to an aquifer.

22. For a discussion of other existing law to protect groundwater, see Comment, Groundwater Pollution in the Western States — Private Remedies and Federal and State Legislation, 8 Land & Water L. Rev. 537 (1973). See also Environmental Protection Agency, Manual of Laws, Regulations and Institutions for Control of Groundwater Pollution (June 1976); Gleason, Water Projects Go Underground, 5 Ecology L.Q. 625 (1976).

23. See text at note 10 supra.

24. 40 Fed. Reg. 10514 (Mar. 6, 1975).

25. 40 Fed. Reg. 58344 (Dec. 16, 1975).

26. Id.

27. Id.

28. 40 C.F.R. §§ 149.1-.11.

29. 40 Fed. Reg. 58292 (Dec. 16, 1975).

30. Id.

31. 40 C.F.R. § 149.8.

** From Support Document — EPA Determination of the Edwards Underground Reservoir.