The new water rule EPA plans to propose may be much more about all our drinking water underground in Florida and south Georgia than about anybody’s private pond.
Stacey H. Mitchell, David H. Quigley and Bryan Williamson, Akin Gump Strauss Hauer & Feld LLP, 11 December 2018, United States: Dipping Its Toe In The Groundwater? Supreme Court Eyes Expedited Review For Clean Water Act Case,
Specifically, the Court aims to address a circuit split among the 4th, 5th and 9th Circuits in determining whether only direct discharges to “navigable waters” (rivers, lakes and other surface waters, for example) are covered or whether groundwater that is “hydrologically connected to surface water” is subject to Clean Water Act (CWA) pollution discharge requirements.2 Groundwater—that is, water held beneath the soil or in between rock structures—does not fall under CWA jurisdiction. Nevertheless, the U.S. Environmental Protection Agency (EPA), for many years, maintained that pollutants that flow with a direct and immediate hydrologic connection through groundwater into surface waters are properly regulated under the CWA.3 Environmentalists agree with EPA’s long-standing position, while many in industry say that the agency is reaching beyond its scope.
Surface water interchanges with groundwater all the time here in the southeast coastal plain, where we all drink with straws from the groundwater.
This SCOTUS case appears to be related to the forthcoming EPA rule change proposal that has been all over the news lately. More from the same article:
EPA, meanwhile, has been actively considering the issue itself, leading at least one petitioner to insist that the Court refrain from hearing the case until after the agency finalizes its decision.4 Despite this pleading, the Court’s desire to potentially rule on the issue during its current term signals that the time to cross this bridge is nearly upon us.
1 Court Order, Docket No. 16-268 (Dec. 3, 2018).
2 Brief of Update Forever, et al, at 2, available at https://www.supremecourt.gov/DocketPDF/18/18-268/67721/20181023112439839_18-268%20Brief%20in%20Opposition.pdf.
3 Id. at 1.
4 See id. at 28 (citing 83 Fed. Reg. 7,126, 7,126 (Feb. 20, 2018)).
While almost all the news coverage talks about surface waters, with much of it using WOTUS (Waters of the U.S.) to drum up a false dichotomy between property rights and clean water, abandoning EPA oversight of groundwater would adversely affect all of us.
This is not just some theoretical matter. Withlacoochee River water going into Shadrick Sink west of the river, then under the river and miles east, forced the city of Valdosta to sink its water wells twice as deep.
Sustainability of Ground-water Resources, by William M. Alley Thomas E. Reilly O. Lehn Franke, 1 January 1999, U.S. Department of the Interior, U.S. Geological Survey – Publisher. In Box E on Page 63:
The Connection Between Surface-Water Quality and Ground-Water Quality in a Karst Aquifer
The Upper Floridan aquifer, which is the sole source of water supply for Valdosta, Georgia, and much of the surrounding area, receives large volumes of direct discharge from the Withlacoochee River through sinkholes in the streambed or off-channel. A highly interconnected conduit system has developed in the Upper Floridan aquifer in this area, which extends at least 15 miles from the sinkhole area. Chloride and isotopic data were used by Plummer and others (1998) to map the percentage of Withlacoochee River water in ground water in the Upper Floridan aquifer (Figure E-1). These data indicate that ground water in parts of the Upper Floridan aquifer contains high percentages of recently recharged Withlacoochee River water. Plummer and others (1998) note that, although the patterns shown in Figure E-1 are generally true over the area, extreme variations can occur at a given location, as would be expected because of the large variations and discontinuities in hydraulic properties in the karst environment and time-varying inflows of river water into the aquifer.
Figure E-1. Estimated percentage of Withlacoochee River water in ground water in the Upper Floridan aquifer, June 1991. (Modified from Plummer and others, 1998.)
The strong connection between the Withlacoochee River and ground water in the Valdosta area has created concerns about the potential for contamination of ground-water supplies by contaminants in the river. There also are concerns about the effects of natural organic matter in the river water. For example, in the early 1980’s, it was recognized that chlorination of aquifer water produced disinfection by-products in excess of drinking-water standards. This occurred as a result of reaction of chlorine with the high amounts of natural organic matter in the river water recharged to the aquifer.
Sinkhole near the Withlacoochee River. (Photograph by Richard E. Krause, U.S. Geological Survey.)
This is not just an issue for Valdosta, or Lowndes County, or Georgia. Florida has even more sinkholes and springs than south Georgia, and underground water also moves sideways all over the Floridan Aquifer.
Figure 60 Map showing potentiometric contours and ground-water movement in the Floridan aquifer system in 1980 (608K), in GROUND WATER ATLAS of the UNITED STATES: Alabama, Florida, Georgia, and South Carolina, HA 730-G, Floridan aquifer system
More recent USGS research also finds salt water moving in layers among the fresh water. We sure don’t need sewage or chicken manure or coal ash or pipeline leakage or drilling fluids or fracking waste added to that mix.
We need to watch for the actual wording of the proposed rule, and if EPA is proposing to abandon our drinking water, we all need to speak up.
Instead, EPA should do what Sierra Club proposed three years ago: declare the Floridan Aquifer a Sole Source Aquifer (SSA) with extra protections. As that 1999 USGS report says, the Floridan Aquifer “is the sole source of water supply for Valdosta, Georgia, and much of the surrounding area.” Where the surrounding area is pretty much all of the area of the Floridan Aquifer.
Thanks to Merrillee Malwitz-Jipson for spotting the article about the SCOTUS case.
-jsq, John S. Quarterman, Suwannee RIVERKEEPER®
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