Wellhead protection program

The Wellhead Protection Program in the 1986 amendments to the Safe Drinking Water Act requires states to protect underground sources of drinking water from contaminants that may adversely affect human health. More than one-third of the people in the United States depend on groundwater for drinking water.[1]:1 However, residential, municipal, commercial, industrial, and agricultural activities can all contaminate groundwater.[2]:C-2 In the event of contamination, a community's drinking water supply can develop poor quality or be lost altogether. Groundwater contamination might not be detected for a long period of time and health problems can occur from drinking contaminated water. Cleanup of a contaminated underground source of drinking water may be impossible or so difficult it costs thousands or millions of dollars.[2]:C-7 The U.S. Congress requiring Wellhead Protection Programs by 42 U.S.C. § 300h–7 in the Safe Drinking Water Act applied the concept that it is better to prevent groundwater contamination than try to remediate it.[3]:4 U.S. Congress by 42 U.S.C. § 300h–7 requires identification of the areas that need implementation of control measures in order to protect public water supply wells from contamination as "wellhead protection areas". Communities can use the police power established by the Tenth Amendment to the U.S. Constitution to enforce zoning and subdivision regulations to protect drinking water sources.[3]:8 Thereby communities can direct development away from areas that would pose a threat to drinking water sources.[3]:7

Purpose

Public groundwater supply aquifers that can support a public water system are vital natural resources.[4] According to an estimate by the U.S. Geological Survey 37% of public water comes from groundwater.[5] The U.S. Geological Survey aquifer sampling for the National Water-Quality Assessment Program frequently found man-made contaminants at concentrations greater than human-health standards in public groundwater supply aquifers. The frequency of man-made contaminants in public water supply aquifers proves the vulnerability of these aquifers to inappropriate land uses. This vulnerability indicates the importance of wellhead protection.[1]:6–7 Wellhead protection is essential to have safe drinking water because the concentrations of many man-made carbon-containing contaminants are not decreased by commonly used drinking water treatment processes.[1]:8 Only by controlling the land uses of their public water source can a community control the quality of the water they drink.[1]:7–8 The U.S. Geological Survey aquifer sampling also frequently detected contaminants for which the U.S. Environmental Protection Agency has not yet established human health standards.[1]:8–9 Several Wikipedia articles involve the vulnerability of groundwater aquifers to contamination as follows:

Wellhead protection requirements created by Congress

U.S. Congress determined the nation's community water supplies must be protected. The United States Code 42 U.S.C. § 300h–7 requires States protect their underground sources of drinking water (USDWs) by Wellhead Protection Programs. These Wellhead Protection Programs must specify the duties of State agencies, local governmental entities, and public water supply systems to develop and implement wellhead protections. Identification of the area that needs wellhead protection must be based on the hydrologic and geologic information on groundwater flow, recharge, and discharge. A community's Wellhead Protection Program must identify all man-made sources of contaminants in the wellhead protection area that may cause adverse health effects. There must be educational and control measures to protect the water supply from these identified sources of contaminants. There must also be a contingency plan for alternate drinking water supplies in the event of contamination. A community's Wellhead Protection Program must add in any new water well that serves a public water supply system.

Adverse effects on the health of persons

In 42 U.S.C. § 300h–7 U.S. Congress says each State shall "protect wellhead areas within their jurisdiction from contaminants which may have any adverse effect on the health of persons." The U.S. Environmental Protection Agency (EPA) says many microorganisms and chemicals have the potential to contaminate ground water. Bacteria and viruses can produce illnesses such as hepatitis, cholera, or giardiasis. High concentrations of nitrates can produce Methemoglobinemia or “blue baby syndrome”. Gasoline contamination promotes the formation of cancer. Lead contamination causes learning disabilities in children as well as nerve, kidney, liver, and pregnancy problems. The EPA goes on to say, "Hundreds of other chemicals, however, are not yet regulated, and many of their health effects are unknown or not well understood. Preventing contaminants from reaching the ground water is the best way to reduce the health risks associated with poor drinking water quality."[2]:C-8 Public health agencies report waterborne disease outbreaks to the Center of Disease Control. During the period from 1971 to 2006, a majority (52.7%) of the 801 reported deficiencies involved the use of contaminated groundwater,[6]

Control measures

Communities evaluate the properties of the aquifer to determine the sensitive areas that need to be protected by local land use zoning. When land use zoning is based on competent scientific evidence to support wellhead protection, land use zoning has been upheld by courts.[7]:231 Communities direct the location of potential sources of contamination to areas outside of sensitive wellhead protection areas to ensure their underground source of drinking water (USDW) remains uncontaminated.[3]:7 For example, a community successfully blocked a proposed $12 million travel plaza/welcome center from endangering their water supply by local land use zoning that prohibits petroleum underground storage tanks (USTs) in a wellhead protection area.[8][9][10]

Federal, State, and local agencies with regulatory and funding power can also limit development to areas outside sensitive wellhead protection areas. By project approvals and by funding authorizations these agencies can control the location of roads, water lines, and wastewater lines that are essential for intensive development.[11]

To protect underground sources of drinking water (USDWs), the U.S. Congress requires Federal agencies by 42 U.S.C. § 300j–6 to comply with Wellhead Protection Programs and Underground Injection Control (UIC) Programs. Actions such as forestry management plans, pipelines, highways, etc. with federal control that may result in contamination of water supplies in wellhead protection areas must comply with Wellhead Protection Programs and Underground Injection Control Programs.

Primarily local government enforcement

The EPA says most local governments can protect underground sources of drinking water by establishing and enforcing zoning regulations.[3]:8 For example, a state court supported a community's denial of a variance from their land use ordinances prohibiting installation of underground petroleum storage tanks in a wellhead protection area. The court found the installation of underground petroleum storage tanks might cause substantial damage to the public good and would be contrary to the community's zoning code.[12]

Several Federal statutes also relate to groundwater protection such as the Safe Drinking Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; Superfund Amendments and Reauthorization Act; the Clean Water Act; and the Federal Insecticide, Fungicide, and Rodenticide Act.[3]:9-10 For example, after a U.S. Geological Survey dye trace study identified the potential contamination risks in the Biscayne Aquifer were far greater than previously considered[13], a U.S. District Court applied the Clean Water Act (CWA) to deny permits for mining in order to protect public and private drinking water wells:[14]

. . . the CWA specifically provides that unacceptable adverse effects on municipal water supplies are sufficient grounds for denial of a 404(b) permit. 33 U.S.C. § 1344(c). The implementing regulations of the CWA also direct that the Corps consider water quality and water supply issues (as part of the "Public Interest Review"). 33 C.F.R. § 320.4(a)(1)[141].[14]:1224

Even if the water treatment plants are able to treat the raw water for the anticipated amounts of benzene, it is nevertheless of grave concern that benzene will now regularly affect a previously pristine Aquifer.[58] The ability to cure a problem does not justify its creation.

[58] . . . While the Corps previously, and perhaps erroneously, concluded that those projects "would be of no risk to the drinking water resource," it is unclear what the level of risks are to the neighboring residential communities which may use private wells to tap into the Aquifer for drinking water or other purposes.[14]:1202

. . . this Court has "taken a long while to come to a short conclusion:" these permits should not have issued.[322] And,, the activities pursuant to these permits should not continue. These activities should not have been permitted in the first instance if the Corps had been conducting the level of analysis mandated by the CWA, ESA, NEPA, and APA, and the relevant regulatory guidance.[14]:1285

Contamination of an underground source of drinking water (USDW) may be a legal injury suffered by the public subject to court action.[7]:206–208 Even if the source of contamination had a permit for its operation that may not avoid groundwater contamination liability.[7]:213 The liability and high costs of groundwater cleanup can cause businesses to abandon problem sites leaving significant long-term financial losses to the community.[15] Businesses want to locate in communities that protect their water supplies in order to avoid paying taxes to clean up someone else's multimillion-dollar contamination.[16]

Protection of a public trust

In 1987 the New Jersey Superior Court says that the public trust doctrine applies to the protection of drinking water sources:

While the original purpose of the public trust doctrine was to preserve the use of the public natural water for navigation, commerce and fishing, Arnold v. Munday, 6 N.J.L. 1, 69-78 (Sup.Ct. 1821), it is clear that since water is essential for human life, the public trust doctrine applies with equal impact upon the control of our drinking water reserves. The Supreme Court has determined that "It is appropriate to consider the unique nature of water." K.S.B. Tech. Sales v. No. Jersey Dist. Water Supply, 75 N.J. 272 (1977). Ultimate ownership rests in the people and this precious natural resource is held by the state in trust for the public benefit. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972).[17]

In 2008 the Vermont legislature revised statute "Title 10, Chapter 048: Groundwater Protection" saying "the groundwater resources of the State are held in trust for the public" and "the groundwater resources of the State shall be managed to minimize the risks of groundwater quality deterioration by regulating human activities that present risks to the use of groundwater".[18] In applying this statute the Vermont Superior Court said:

By its nature, the public trust imposes on the state a "special obligation to maintain the trust for the use and enjoyment of present and future generations."[19]

U.S. Congress by the National Environmental Policy Act 42 U.S.C. § 4331(a) recognizes it is not acceptable to abuse renewable natural resources that would prevent their use by future generations. The role of the Federal government in water resources is shifting from resource development to environmental protection and water conservation.[7]:553

Underground Injection Control

The Underground Injection Control (UIC) Program prohibits underground injections that could endanger Underground Sources of Drinking Water (USDWs). For shallow injection wells, the U.S. Environmental Protection Agency has found that storm waters directed into Class V injection wells contain many contaminants in concentrations above the drinking water standards or health advisory limits.[20]

Environmental Protection Agency's emergency power

By 42 U.S.C. § 300i Congress gives the Environmental Protection Agency's Administrator emergency power to “take such actions as he may deem necessary in order to protect the health of” consumers of public water. This emergency power applies to preventing contamination of all Underground Sources of Drinking Water (USDWs). This includes USDWs future generations may need for public water and private wells.[21]

Sole Source Aquifer

An aquifer can be designated as a Sole Source Aquifer if the aquifer supplies at least 50% of a community's drinking water and there is no alternative drinking water source. With this designation there can be no federal financial assistance for any project which the Environmental Protection Agency Administrator determines may contaminate the aquifer so as to create a significant hazard to public health.[22]

Source Water Quality Assessment

States identify all the potential contaminate sources that might affect their surface and underground public water supplies for the Source Water Quality Assessment Program of 42 U.S.C.§ 300j–13.

See also

References
  1.  This article incorporates public domain material from the United States Geological Survey document: Toccalino, Patricia; Hopple, Jessica (2010). The quality of our Nation's waters—Quality of water from public-supply wells in the United States, 1993–2007—Overview of major findings. U.S. Geological Survey. Retrieved December 26, 2018.
  2.  This article incorporates public domain material from the United States Environmental Protection Agency document: "Getting up to Speed - Groundwater Contamination" (PDF). epa.gov. U.S. Environmental Protection Agency. 2002. Retrieved March 7, 2019.
  3.  This article incorporates public domain material from the United States Environmental Protection Agency document: Harvey, Reid; Linquiti, Peter (1989). Wellhead Protection Programs: Tools for Local Governments (PDF). Office of Water, Office of Ground-water Protection, U.S. Environmental Protection Agency. The most cost-effective approach is to prevent contamination before it occurs, rather than attempting to remedy existing contamination.
  4.  This article incorporates public domain material from the United States Environmental Protection Agency document: Protecting The Nation's Ground Water: EPA's Strategy For The 1990s (PDF). Office of the Administrator, U.S. Environmental Protection Agency. 1991. p. Opening letter.
  5.  This article incorporates public domain material from the United States Geological Survey document: Maupin, Molly A.; Kenny, Joan F.; Hutson, Susan S.; Lovelace, John K.; Barber, Nancy L.; Linsey, Kristin S. (2014). Estimated use of water in the United States in 2010: U.S. Geological Survey Circular 1405 (PDF). Reston, Virginia: U.S. Geological Survey. p. 18. doi:10.3133/cir1405. ISBN 978-1-4113-3862-3.
  6. Craun, Gunther F.; Brunkard, Joan M.; Yoder, Jonathan S.; Roberts, Virginia A.; Carpenter, Joe; Wade, Tim; Calderon, Rebecca L.; Roberts, Jacquelin M.; Beach, Michael J.; Roy, Sharon L. (Jul 2010). "Causes of Outbreaks Associated with Drinking Water in the United States from 1971 to 2006" (PDF). Clinical Microbiology Reviews. 23 (3): 507–28. doi:10.1128/CMR.00077-09. PMC 2901654. PMID 20610821. Retrieved March 8, 2019.
  7. Tarlock, Anthony Dan; Robinson, Jason (2018). Law of Water Rights and Resources. Thomson Reuters. ISBN 978-0-314-87771-0.
  8. Love's Travel Stops and Country Stores, Inc. v. DiOrio, CA No. WC09-844 (R.I. Super. Ct. Mar. 21, 2014) ("“USTs would be prohibited on this site according to . . . the zoning code."").
  9. Carini, Frank (December 29, 2016). "Hopkinton May Not Be Best Place for Truckers, Motorists to Rest". ecoRI News. Retrieved December 26, 2018.
  10. Cook-Martin, Elizabeth. "Hopkinton, Rhode Island, Town Council Meeting Minutes – February 6, 2017" (PDF). hopkinsonri.org. pp. 8–13. Retrieved December 26, 2018.
  11. Trautrnann, Nancy; Porter, Keith; Wagenet, Robert (1990). Wellhead Protection: An Overview (PDF). Cornell Cooperative Extension. p. 5.
  12. Wawa, Inc. v. NEW CASTLE COUNTY BD. OF ADJ., 929 A.2d 822, 838 (Del. Super. 2005).
  13. Renken, R.; Cunningham, K.; Zygnerski, M.; Wacker, M.; Shapiro, A.; Harvey, R.; Metge, D.; Osborn, C.; Ryan, J. (November 2005). "Assessing the Vulnerability of a Municipal Well Field to Contamination in a Karst Aquifer". Environmental and Engineering Geoscience. 11 (4): 319–331. doi:10.2113/11.4.319.
  14. Sierra Club v. Strock, 495 F. Supp. 2d 1188 (S.D. Fla. 2007).
  15.  This article incorporates public domain material from the United States Environmental Protection Agency document: McCormack, Kevin (1991). Why do wellhead protection? Issues and answers in protecting public drinking water supply systems (PDF). Ground Water Protection Division, Office of Ground Water and Drinking Water, Office of Water, U.S. Environmental Protection Agency. p. 14.
  16. Ainsworth, Steve; Jehn, Paul (2005). "Source Water Protection: What's in It for You?". Groundwater Monitoring & Remediation. 25 (2): 46. doi:10.1111/j.1745-6592.2005.0043.x.
  17. MAYOR AND MUNICIPAL COUNCIL OF CITY OF CLIFTON v. Passaic Valley Water Com'n, 224 N.J. Super. 53, 64 (N.J. Super. 1987).
  18. "Title 10: Conservation And Development, Chapter 048: Groundwater Protection". The Vermont Statutes Online. Vermont General Assembly. 2008. Retrieved March 12, 2019.
  19. In re Omya Solid Waste Facility Final Certification, 9/11 (Vt. Super. 2011). Text
  20.  This article incorporates public domain material from websites or documents of the United States Environmental Protection Agency. Office of Groundwater and Drinking Water (1999). The Class V Underground Injection Control Study, Volume 3, Storm Water Drainage Wells, EPA/816-R-99-014c (PDF). p. 40. Retrieved 18 November 2018.
  21.  This article incorporates public domain material from the United States Environmental Protection Agency document: Office of Enforcement and Compliance Assurance. "Updated Guidance on Emergency Authority under Section 1431 of the Safe Drinking Water Act" (PDF). Retrieved 2018-12-05.
  22.  This article incorporates public domain material from the United States Environmental Protection Agency document: "Sole Source Aquifer Program". Retrieved 2018-12-28.
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