December 24, 2007, Water Policy Report (EPA) Vol. 16, No. 26 - Key House lawmakers are exploring ways to increase federal protection of groundwater in response to environmentalists' concerns that bottled water companies are damaging sensitive water resources when extracting groundwater for sale, but it appears that options for EPA or U.S. Army Corps of Engineers regulation are unlikely.
At a Dec. 12 hearing on the issue, Rep. Dennis Kucinich (D-OH) said there is a question of whether federal agencies adequately enforce federal protections such as the Clean Water Act, the Wild & Scenic Rivers Act and the National Environmental Policy Act (NEPA), which "are triggered when surface waters are imperiled by groundwater extraction."
EPA lacks the general authority to regulate water quantity, although EPA officials say there is a connection between water quantity and water quality, which is the focus of EPA's water activities.
Kucinich, chair of the House Oversight & Government Reform Committee's domestic policy subcommittee, held the hearing to explore the rising number of complaints by small communities alleging that spring water bottling companies are tapping into critical groundwater supplies.
While a number of states have enacted laws to address underground water resources, Kucinich said "state laws are woefully inadequate."
And attempts to use common law litigation to limit groundwater extractions for bottled water are also problematic, he said. "The common law was formulated before modern science understood the connections between groundwater and surface water and before the advent of large-scale mechanized pumping," Kucinich said. "As a result, it provides little protection for conservation."
Subcommittee Ranking Member Darrell Issa (R-CA) voiced concern that "safe drinking water, affordable drinking water, and sustainable aquifers around the country are in peril." Issa lambasted bottled water companies for excessive pricing and waste. "I still can't figure out why between bottled water and Starbucks coffee, gasoline seems like a deal from OPEC," he said.
Issa asked witnesses at the hearing, including environmentalists, community activists and bottled water industry representatives, how to regulate groundwater extraction. "Other than insuring federal access to national waterways, or the . . . Clean Water Act . . . does anyone know of any . . . hooks?" Issa asked.
Several witnesses said EPA and the Department of Interior should work together to further define the scope of groundwater aquifers.
Law professor Noah Hall cautioned that "federal statutes only come into play incidentally" when constructing or operating a bottled water plant, such as wetlands dredge and fill permits or plant discharge permits. "So the Army Corps of Engineers doesn't really have a hook," he said.
David Hyndman, another law professor testifying before the committee, said the most likely way to change bottled water operations are to change Food & Drug Administration regulations defining "spring water." The definition of spring water, Hyndman said, encourages companies to tap into ecologically sensitive aquifers and headwaters. The spring water classification, Hyndman and other witnesses said, had no review under NEPA despite what bottled water opponents say is a high likelihood of it having a significant environmental impact. Hearing testimony is available on InsideEPA.com.
Rep. Danny Davis (D-IL) questioned why groundwater extraction by bottled water companies, which uses significantly less water than soft drink and beer processing, is more worthy of regulation than those processes. Several witnesses answered that the likelihood of bottled spring water coming from sensitive areas makes it a more pressing issue.
But the bottled water industry, represented at the hearing by Nestle and the International Bottled Water Association (IBWA), says the increased focus is unfair, and that its extractions are significantly less harmful than other users.
Instead industry representatives said Congress should pass H.R. 135, a bill establishing a presidential commission of experts to map out a national plan for innovative strategies to store more water and shore up resources for the future. "That's probably the best role the federal government can play. Map out a comprehensive strategy that treats all users equitably," Joseph Doss, IBWA president and CEO, told Inside EPA in an interview.
H.R. 135, sponsored by Rep. John Linder (R-GA), has passed through the House three times in various incarnations, but never the Senate. Supporters of H.R. 135 are hoping that Sen. Barbara Boxer's (D-CA) leadership of the Senate environment committee will allow the bill to finally have Senate consideration (Water Policy Report, Oct. 29, p27).
The commission will study the federal, interstate, state and local agencies and private sector entities' actions regarding "improving the availability, reliability and quality of freshwater resources," the bill says. After no more than a three-year period, it will recommend changes to laws, treaties and other such agreements to reflect a comprehensive, nationwide water strategy that "respects the primary role of the states" and meets the needs of a 50-year water supply. The bill authorizes $9 million for the commission's activities.
The House Natural Resources Committee approved the bill Oct. 10, but the House Transportation & Infrastructure Committee must also pass the bill before it goes to the House floor. It currently has 27 co-sponsors.
Congressional interest in the bottled water industry comes on the heels of coordinated efforts by city governments to limit the sales of bottled water over fears about the impact that plastic bottles have on municipal waters systems (Water Policy Report, July 23, p26).
The U.S. Conference of Mayors June 25 passed a resolution calling for a study on the impact of plastic water bottles on municipal waste systems, citing the the increased plastic waste created by water bottles, the fossil fuels used to produce and transport them and the billions spent by city governments on water needs each year.
Cities such as San Francisco, Los Angeles and Santa Barbara, CA, have banned purchases of bottled water by city departments. In Utah, the mayor of Salt Lake City banned bottled water sales at a recent outdoor jazz festival. Ann Arbor, MI, has imposed a similar ban. And New York City has launched an advertising campaign promoting the municipal drinking water system over bottled water. In November, the city of Chicago added a five cent per bottle tax to bottled water to help pay for sewer system costs.