Clean Drinking Water is Flush with Regulations

By Megan S. Fuller

Most people have heard of the Clean Water Act and assume that it is the law that keeps our water safe and potable. Simple, right? Naturally, the regulatory environment is quite complicated. The Clean Water Act of 1972 (CWA) expanded on the Federal Water Pollution Control Act of 1948 and was begrudgingly signed into law by President Nixon (he thought the CWA would bust the budget). Once signed, it was determined that multiple regulatory agencies would have authority over different aspects of the CWA. The Environmental Protection Agency (EPA) implements pollution control programs and sets waste water standards for the industry. If a business has the potential to discharge a pollutant into waters of the US they need obtain a National Pollutant Discharge Elimination System (NPDES) permit and meet EPA standards (but the permits are usually overseen by the states). However, if a business wants to discharge dredged or fill materials into waters of the US they need to get a Section 404 permit from the US Army Corps of Engineers. The term “waters of the US” legal definition changes from time to time, depending on administrations, but covers only surface waters such as lakes and streams. Here in Arizona it is important to note that the term can include dry washes depending on certain physical characteristics of the wash. Arizona Department of Environmental Quality (ADEQ) has a similar permit requirement at the state level to safeguard our surface waters; the Arizona Pollutant Discharge Elimination System (AZPDES) program.

According to the EPA more than 70% of public water systems get water from groundwater not surface water and the CWA does not apply to groundwater. To keep groundwater safe and potable, as well as surface waters that are used in community systems, Congress passed the Safe Drinking Water Act (SDWA) in 1974 (it was amended in both 1986 and 1996). Under the SDWA the EPA sets contaminant standards and requires states to certify water systems and operators. In addition, the EPA regulates the injection of pollutants into groundwater by requiring Underground Injection Control (UIC) permits for those that want to dispose of waste or utilize chemicals for in-situ mineral extraction (this is a technique known to be used for the extraction of potash, uranium, copper, and probably other minerals depending on the setting; fracking for oil and natural gas does NOT require a UIC permit). UIC permits require extensive environmental studies and are considered functionally equivalent of the National Environmental Policy Act (NEPA)-this is true for NPDES permits as well [40 C.F.R. § 124.9 (b)(6)]. Arizona has corresponding regulations for groundwater injections and requires an Aquifer Protection Permit (APP) for pollutant discharge either directly into an aquifer or anywhere that the pollutant might be expected to reach an aquifer. The APP program is also overseen by ADEQ.

The regulations discussed in this article are by no means an exhaustive list of laws that protect our water. Everyone knows that clean water is essential to quality of life for all living creatures. These laws are the foundation for a fit aquatic environment but without suitable oversite they are all for naught. The regulatory agencies need to be fully staffed with technical experts who can properly review permit applications and subsequent compliance reporting, determine standards and best practices, and have significant authority to enforce the laws, so that any non-compliance will be caught, censured, and corrected. Strong regulatory agencies are necessary for a healthy environment and a healthy community.