[Title 40 CFR 149]
[Code of Federal Regulations (annual edition) - July 1, 1996 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)]
[Part 149 - SOLE SOURCE AQUIFERS]
[From the U.S. Government Publishing Office]
40
PROTECTION OF ENVIRONMENT
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1996-07-01
1996-07-01
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SOLE SOURCE AQUIFERS
149
PART 149
PROTECTION OF ENVIRONMENT
ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 149--SOLE SOURCE AQUIFERS--Table of Contents
Subpart A--Criteria for Identifying Critical Aquifer Protection Areas
Sec.
149.1 Purpose.
149.2 Definitions.
149.3 Critical Aquifer Protection Areas.
Subpart B--Review of Projects Affecting the Edwards Underground
Reservoir, A Designated Sole Source Aquifer in the San Antonio, Texas
Area
149.100 Applicability.
149.101 Definitions.
149.102 Project review authority.
149.103 Public information.
149.104 Submission of petitions.
149.105 Decision to review.
149.106 Notice of review.
149.107 Request for information.
149.108 Public hearing.
149.109 Decision under section 1424(e).
149.110 Resubmittal of redesigned projects.
149.111 Funding to redesigned projects.
Authority: Sec. 1424(e), Safe Drinking Water Act (42 U.S.C. 300h-
3(e); sec. 1427 of the Safe Drinking Water Act, (42 U.S.C. 300h-6).
Subpart A--Criteria for Identifying Critical Aquifer Protection Areas
Source: 52 FR 23986, June 26, 1987, unless otherwise noted.
Sec. 149.1 Purpose.
The purpose of this subpart is to provide criteria for identifying
critical aquifer protection areas, pursuant to section 1427 of the Safe
Drinking Water Act (SDWA).
Sec. 149.2 Definitions.
(a) Aquifer means a geological formation, group of formations, or
part of a formation that is capable of yielding a significant amount of
water to a well or spring.
(b) Recharge means a process, natural or artificial, by which water
is added to the saturated zone of an aquifer.
(c) Recharge Area means an area in which water reaches the zone of
saturation (ground water) by surface infiltration; in addition, a major
recharge area is an area where a major part of the recharge to an
aquifer occurs.
(d) Sole or Principal Source Aquifer (SSA) means an aquifer which is
designated as an SSA under section 1424(e) of the SDWA.
[54 FR 6843, Feb. 14, 1989]
Sec. 149.3 Critical Aquifer Protection Areas.
A Critical Aquifer Protection Area is either:
[[Page 678]]
(a) All or part of an area which was designated as a sole or
principal source aquifer prior to June 19, 1986, and for which an
areawide ground-water quality protection plan was approved, under
section 208 of the Clean Water Act, prior to that date; or
(b) All or part of a major recharge area of a sole or principal
source aquifer, designated before June 19, 1988, for which:
(1) The sole or principal source aquifer is particularly vulnerable
to contamination due to the hydrogeologic characteristics of the
unsaturated or saturated zone within the suggested critical aquifer
protection area; and
(2) Contamination of the sole or principal source aquifer is
reasonably likely to occur, unless a program to reduce or prevent such
contamination is implemented; and
(3) In the absence of any program to reduce or prevent
contamination, reasonably foreseeable contamination would result in
significant cost, taking into account:
(i) The cost of replacing the drinking water supply from the sole or
principal source aquifer, and
(ii) Other economic costs and environmental and social costs
resulting from such contamination.
[54 FR 6843, Feb. 14, 1989]
Subpart B--Review of Projects Affecting the Edwards Underground
Reservoir, A Designated Sole Source Aquifer in the San Antonio, Texas
Area
Source: 42 FR 51574, Sept. 29, 1977, unless otherwise noted.
Redesignated at 52 FR 23986, June 26, 1987.
Sec. 149.100 Applicability.
This subpart sets forth, pursuant to sections 1424(e) and 1450 of
the Public Health Service Act, as amended by the Safe Drinking Water
Act, Pub. L. 93-523, regulations relating the Edwards Underground
Reservoir which is the sole or principal drinking water source for the
San Antonio area and which, if contaminated, would create a significant
hazard to public health.
[42 FR 51574, Sept. 29, 1977. Redesignated and amended at 52 FR 23986,
June 26, 1987]
Sec. 149.101 Definitions.
As used in this subpart and except as otherwise specifically
provided, the term(s):
(a) Act means the Public Health Service Act, as amended by the Safe
Drinking Water Act, Public Law 93-523.
(b) Contaminant means any physical, chemical, biological, or
radiological substance or matter in water.
(c) Recharge zone means the area through which water enters the
Edwards Underground Reservoir as defined in the December 16, 1975,
Notice of Determination.
(d) Administrator (Regional Administrator) means the Administrator
(Regional Administrator) of the United States Environmental Protection
Agency.
(e) Person means an individual, corporation, company, association,
partnership, State, or municipality.
(f) Project means a program or action for which an application for
Federal financial assistance has been made.
(g) Federal financial assistance means any financial benefits
provided directly as aid to a project by a department, agency, or
instrumentality of the Federal government in any form including
contracts, grants, and loan guarantees. Actions or programs carried out
by the Federal government itself such as dredging performed by the Army
Corps of Engineers do not involve Federal financial assistance. Actions
performed for the Federal government by contractors, such as
construction of roads on Federal lands by a contractor under the
supervision of the Bureau of Land Management, should be distinguished
from contracts entered into specifically for the purpose of providing
financial assistance, and will not be considered programs or actions
receiving Federal financial assistance. Federal financial assistance is
limited to benefits earmarked for a specific program or action and
directly awarded to the program or action. Indirect assistance, e.g., in
the form of a loan to a developer by a lending institution which in turn
receives Federal assistance not specifically related to the project in
question is not Federal financial assistance under section 1424(e).
[[Page 679]]
(h) Commitment of Federal financial assistance means a written
agreement entered into by a department, agency, or instrumentality of
the Federal Government to provide financial assistance as defined in
paragraph (g) of this section. Renewal of a commitment which the issuing
agency determines has lapsed shall not constitute a new commitment
unless the Regional Administrator determines that the project's impact
on the aquifer has not been previously reviewed under section 1424(e).
The determination of a Federal agency that a certain written agreement
constitutes a commitment shall be conclusive with respect to the
existence of such a commitment.
(i) Streamflow source zone means the upstream headwaters area which
drains into the recharge zone as defined in the December 16, 1975,
Notice of Determination.
(j) Significant hazard to public health means any level of
contaminant which causes or may cause the aquifer to exceed any maximum
contaminant level set forth in any promulgated National Primary Drinking
Water Standard at any point where the water may be used for drinking
purposes or which may otherwise adversely affect the health of persons,
or which may require a public water system to install additional
treatment to prevent such adverse effect.
(k) Aquifer means the Edwards Underground Reservoir.
[42 FR 51574, Sept. 29, 1977. Redesignated and amended at 52 FR 23986,
June 26, 1987]
Sec. 149.102 Project review authority.
(a) Once an area is designated, no subsequent commitments of Federal
financial assistance may be made to projects which the Administrator
determines may contaminate the aquifer so as to create a significant
hazard to public health.
(b) The Regional Administrator is hereby delegated the authority and
assigned responsibility for carrying out the project review process
assigned to the Administrator under section 1424(e) of the Act, except
the final determination that a project may contaminate the aquifer
through its recharge zone so as to create a significant hazard to public
health.
(c) The Regional Administrator may review any project which he
considers may potentially contaminate the aquifer through its recharge
zone so as to create a significant hazard to public health.
Sec. 149.103 Public information.
After the area is designated under section 1424(e), Federal
agencies, for projects, located in the recharge zone and streamflow
source zones, are required to:
(a) Maintain a list of projects for which environmental impact
statements will be prepared in accordance with the National
Environmental Policy Act (NEPA);
(b) Revise the list at regular intervals and submit to EPA; and
(c) Make the list available to the public upon request.
Sec. 149.104 Submission of petitions.
Any person may submit a petition requesting the Regional
Administrator to review a project to determine if such project may
contaminate the aquifer through its recharge zone so as to create a
significant hazard to public health. Any such petition shall identify:
(a) The name, address, and telephone number of the individual,
organization, or other entity submitting the petition;
(b) A brief statement of the requesting person's interest in the
Regional Administrator's determination;
(c) The name of the project and Federal agency involved;
In addition, the petitioner is requested to submit to EPA available
information on:
(d) Applicable action already taken by State and local agencies
including establishment of regulations to prevent contamination of the
aquifer and why, in the petitioner's judgment, the action was
inadequate.
(e) Any actions taken under the National Environmental Policy Act
and why, in the petitioner's judgment, that action was inadequate in
regard to evaluation of potential effect on the aquifer.
(f) The potential contaminants involved;
[[Page 680]]
(g) The means by which the contaminant might enter the aquifer; and
(h) The potential impact of the proposed project.
Sec. 149.105 Decision to review.
(a) The Regional Administrator shall review under section 1424(e)
all projects located in the recharge or streamflow source zone of the
aquifer for which a draft or final EIS is submitted which may have an
impact on ground water quality and which involve Federal financial
assistance as defined in these regulations.
(b) Upon receipt of a public petition, the Regional Administrator
shall decide whether the project which is the subject of the petition
should be reviewed under section 1424(e).
(c) The Regional Administrator may decide to review a project upon
his own motion.
(d) In determining whether to review a project upon receipt of a
public petition or upon his own motion, the Regional Administrator shall
consider whether the project is likely to directly or indirectly cause
contamination of the aquifer through its recharge zone, taking into
account any factors he deems relevant, including:
(1) The location of the project, and
(2) The nature of the project.
(e) In determining whether to review a project upon receipt of a
public petition or upon his own motion, the Regional Administrator may
consult with, or request information from, the Federal agency to which
the project application has been made, the applicant seeking Federal
assistance, appropriate State and local agencies, and other appropriate
persons or entities.
(f) In determining whether to review a project which is the subject
of a public petition, the Regional Administrator may request such
additional information from the petitioner as he deems necessary.
Sec. 149.106 Notice of review.
(a) Notice to Federal agency. If the Regional Administrator decides
upon receipt of a public petition or upon his own motion to review a
project under section 1424(e), he shall give written notification of the
decision to the Federal agency from which financial assistance is
sought. The notification shall include a description and identification
of the project.
(b) Notice to public. When the Regional Administrator undertakes to
review a project pursuant to Sec. 149.13 above, he shall provide public
notice of project review by such means as he deems appropriate. The
notice shall set forth the availability for public review of all data
and information available, and shall solicit comments, data and
information with respect to the determination of impact under section
1424(e). The period for public comment shall be 30 days after public
notice unless the Regional Administrator extends the period at his
discretion or a public hearing is held under Sec. 149.16.
Sec. 149.107 Request for information.
In reviewing a project under section 1424(e), the Regional
Administrator may request any additional information from the funding
Federal agency which is pertinent to reaching a decision. If full
evaluation of the groundwater impact of a project has not been submitted
in accordance with the agency's NEPA procedures, the Regional
Administrator may specifically request that the Federal agency submit a
groundwater impact evaluation of whether the proposed project may
contaminate the aquifer through its recharge zone so as to create a
significant hazard to public health.
Sec. 149.108 Public hearing.
If there is significant public interest, the Regional Administrator
may hold a public hearing with respect to any project or projects to be
reviewed if he finds that such a hearing is necessary and would be
helpful in clarifying the issues. Public hearings held under this
section should be coordinated, if possible, with other Federal public
hearings held pursuant to applicable laws and regulations. Any such
hearing shall be conducted by the Regional Administrator or designee in
an informal, orderly and expeditious manner. Where appropriate, limits
may be placed upon the time allowed for oral statements, and statements
may be required to be submitted in writing. The record will
[[Page 681]]
be held open for further public comment for seven (7) days following the
close of the public hearing.
Sec. 149.109 Decision under section 1424(e).
(a) As soon as practicable after the submission of public comments
under section 1424(e) and information requested by the Environmental
Protection Agency from the originating Federal agency, on the basis of
such information as is available to him, the Regional Administrator
shall review the project taking all relevant factors into account
including:
(1) The extent of possible public health hazard presented by the
project;
(2) Planning, design, construction, operation, maintenance and
monitoring measures included in the project which would prevent or
mitigate the possible health hazard;
(3) The extent and effectiveness of State or local control over
possible contaminant releases to the aquifer;
(4) The cumulative and secondary impacts of the proposed project;
and
(5) The expected environmental benefits of the proposed project.
(b) After reviewing the available information, the Regional
Administrator shall:
(1) Determine that the risk of contamination of the aquifer through
the recharge zone so as to create a significant hazard to public health
is not sufficiently great so as to prevent commitment of Federal funding
to the project; or
(2) Forward the information to the Administrator with his
recommendation that the project may contaminate the aquifer through the
recharge zone so as to create a significant hazard to public health.
(c) After receiving the available information forwarded by the
Regional Administrator, the Administrator shall:
(1) Determine that the risk of contamination of the aquifer through
the recharge zone so as to create a significant hazard to public health
is not sufficiently great so as to prevent commitment of Federal funding
to the project; or
(2) Determine that the project may contaminate the aquifer through
the recharge zone so as to create a significant hazard to public health.
(d) Notice of any decisions by the Regional Administrator under
paragraph (b)(1) of this section or by the Administrator under
paragraphs (c)(1) and (2) of this section to prevent a commitment of
Federal funding shall be published in the Federal Register. Such notices
shall include a description of the propsed project, and a statement of
decision with an accompanying statement of facts and reasons.
Sec. 149.110 Resubmittal of redesigned projects.
If a project is redesigned in response to EPA's objections, the
applicant for Federal financial assistance or the grantor agency may
file a petition with the Regional Administrator for withdrawal of the
determination that the project may contaminate the aquifer through the
recharge zone so as to create a significant hazard to public health. Any
such petition shall demonstrate how the project has been redesigned so
as to justify the withdrawal of EPA's objections. If appropriate, the
Regional Administrator may request public comments or hold an informal
public hearing to consider the petition. After review of pertinent
information, the Regional Administrator shall either deny the petition
or recommend to the Administrator that the initial determination that a
project may contaminate the aquifer be vacated. Upon receipt of a
recommendation from the Regional Administrator that a determination be
vacated, the Administrator shall either deny the petition or order that
the initial determination be vacated. The final decision regarding a
petition shall be published in the Federal Register with an accompanying
statement of reasons.
Sec. 149.111 Funding to redesigned projects.
After publication of a decision that a proposed project may
contaminate a sole or principal source aquifer in a designated area
through its recharge zone so as to create a significant hazard to public
health, a commitment for Federal financial assistance may be entered
into, if authorized under another
[[Page 682]]
provision of law, to plan or redesign such project to assure that it
will not so contaminate the aquifer.