United States
Environmental Protection
M m Agency
Supplemental Information Sheet: Class II Program
Transfer from the Idaho Department of Water
Resources to EPA
May 2018
U.S. Environmental Protection Agency, Region 10
Ground Water Unit
Office of Compliance and Enforcement (OCE-101)
Seattle, WA 98101

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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
Introduction
This document has been prepared to provide supplemental information outside the limited scope of a
rulemaking related to the program transfer of the Underground Injection Control ("UIC") Class II oil and
gas injection well program ("Class II program" regulating "Class II wells") from the Idaho Department of
Water Resources ("IDWR") to the U.S. Environmental Protection Agency ("EPA" or "the Agency"). On
August 25, 2017, IDWR requested that EPA directly implement and enforce the Class II program in Idaho.
Pursuant to Title 40 Part 145.34 of the Code of Federal Regulations ("CFR"), EPA published notice of the
transfer of authority in the Federal Register, and proposed a ministerial revision to 40 CFR Part 147 to
reflect such transfer. Between November 27, 2017 and January 11, 2018, EPA took public comment
regarding this ministerial revision (Docket EPA-HQ-OW-2017-0584). EPA received many comments
during the public comment period that were outside the scope of the proposed rule revision (see,
Responsiveness Summary for the Proposed Rule Revision to Title 40. Section 147 Subpart N of the Code
of Federal Regulations (Codifying Idaho's Class II Underground Injection Control Program Transfer to the
USEPA)) that raised questions about the legality of Class II wells in Idaho or concerns with the way in
which EPA intends to protect the natural environment from Class II injection wells. EPA did not respond
to out of scope comments in this Responsiveness Summary, as these comments are not considered part
of the record for this ministerial regulatory revision. However, because of the demonstrated public
interest in these out of scope issues, EPA did compile and respond to many questions and concerns that
fell into the following two categories:
•	State Program Approval and Transfers - The history of Class II injection well regulations under
state law, and how the voluntary transfer affects and does not affect the legality of Class II
injection wells in Idaho.
•	EPA's Class II Direct Implementation Program - How EPA intends on implementing a Class II
program based on the Agency's regulations, guidance, and historical precedent.
This document was created as an information source for those seeking to learn more about these two
topics, but is not part of the record for this final rule. Rather, this information is being provided based
on a perceived need to share additional information outside the scope of the rulemaking. One reason
why this document may be beneficial is that there has never before been an active Class II program in
Idaho, so there may be an unfamiliarity between the people who live in this area and the nature of the
Class II program. This supplemental information sheet may also be helpful because it's rare for state
programs to transfer regulatory authority back to EPA, and the process for doing so involves nuanced
and sometimes complicated codification processes.
During the public comment period for the revision to CFR Part 147 Subpart N EPA received over 300
comments, many of which focused on the two bulleted topics, above. Clearly there is interest to learn
more about these issues, and this document attempts to provide publically-available information for
those who seek to understand more about these issues. In addition to providing descriptions of
fundamental UIC processes, this document also shares links to additional information. We encourage
people to follow these links to gather information that may answer follow-up questions. It should be
pointed out that the sources included in this document do not represent the full body of available
information sources on these issues. We encourage people to review our website (epa.gov/uic) for
additional information.
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
State Program Approvals and Transfers
On August 25, 2017, IDWR requested that EPA transfer primacy of the Class II program from the state to
direct implementation of the program by EPA. In the following months, EPA notified the public of the
transfer and started a rule revision process to update Title 40, Part 147 Subpart N of the CFR to codify
the change in primacy. These two actions (one being the administrative transfer of the Class II program,
the other being the rule change to codify the change in primacy) were bundled together in one public
notice, published on November 27, 2017 in the Federal Register. As EPA noted in the notice document,
EPA's regulations do not provide for public comment on the transfer of primacy and, accordingly, EPA
took comment only on the ministerial revision to the regulations to reflect the transfer of authority.
More information is found in the Responsiveness Summary for the proposed rule revision, which is
available on the Docket for this action (Docket EPA-HQ-OW-2017-0584).
This section provides additional information for those wishing to learn more about UIC program
transfers. This includes information on how states, tribes, or territories attain UIC program, how
programs are transferred within various levels of government, what will happen as the result of Class II
program transfer in Idaho, how EPA's policy to delegate to the states plays into this, and, finally, why
EPA is not required to conduct review under the National Environmental Policy Act (NEPA) for program
transfers such as this.
On Attaining and Transferring UIC Primacy
Primary enforcement authority, often called primacy, refers to state, territorial, or tribal responsibilities
associated with implementing EPA approved UIC programs. A state, territory, or tribe with UIC primacy
implements and enforces the UIC program in that state, territory, or tribe. Currently, thirty-four states
and three territories have EPA approved primacy programs for well classes I, II, III, IV and V (Figure
1). Additionally, seven states and two tribes have applied for and received primacy approval for Class II
wells only. If a state, territory, or tribe does not obtain primacy for all or some of the well classes, EPA
implements the program directly through one of its regional offices. Currently, EPA implements the UIC
program for all well classes in nine states and two territories. Except for the Navajo Nation and Fort
Peck Class II programs, EPA directly implements the UIC program in Indian country.
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
0 Puerto ftco
0 V.rgin Islands
#	American Somoa
#	Indian Tribes, encoding Class II for Navajo Nanon (NN)
HI
*
Primacy/well class II only
Primacy/well classes l-V
Primacy/well classes l-VI
and Ft Peck (FP)
£ Commonwealth of Northern Mariana Islands
# Guam
« EPA retains direct Implementation authority
for class II wells in Florida
Figure 1. Diagram of States indicating primacy relationship with EPA as of May 11, 2018.
States, territories, or tribes may apply for primacy by submitting a State Program Approval package to
EPA containing elements that, as a whole, represent the manner in which the proposed program will be
implemented. EPA established a method for conducting a State Program Approval in the Code of
Federal Regulations (CFR, See, 40 CFR Part 145). In the mid-1980's the Idaho Department of Water
Resources ("IDWR") submitted application material to EPA including State Regulations pertinent to UIC,
a Program Description, and other materials establishing the authorized program. Upon approval in
1985, the State Program Approval package was codified in the federal regulations and the state was
granted primacy for Class I, II, III, IV, and V wells within the state. Idaho's approved program has been
written into the CFR under Title 40. Part 147 Subpart N. Since this time, no changes have been made to
EPA's regulations codifying this primacy relationship. Therefore, the state program that EPA approved in
1985 continues to be the program that EPA recognizes as authorized in Idaho.
The Safe Drinking Water Act, Subpart C, and the associated UIC regulations were written with the
foresight that in the future EPA and/or a state, territory, or tribe may wish to revise a primacy
relationship. A state with an approved primacy program may voluntarily transfer UIC program
responsibilities to EPA, pursuant to 40 CFR 145.34(a). On August 25, 2017, IDWR requested that EPA
operate the Class II injection well program in the state of Idaho and initiated a voluntary program
transfer pursuant to 40 CFR §145.34, Procedures for withdrawal of State programs. The regulations
require that EPA provide notice of such transfer in the Federal Register at least 30 days before the
transfer is to occur (40 CFR 145.34(a)(3)). On November 27, 2017, EPA published notice of the proposed
transfer in the Federal Register (82 FR 55968) fulfilling this requirement of a voluntary program transfer.
This Federal Register Notice also served another purpose: because Idaho's rules as codified in the CFR
constitute the applicable UIC program in the state, EPA was required to revise 40 CFR Part 147 Subpart
N to reflect the transfer. The Notice put forth in the Federal Register initiated a draft rule revision to
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
this codification that would remove the legal authority for the state to implement the Class II program.
EPA sought public comment on the proposed rule revision, collecting public comments between
November 27, 2017 and January 11, 2018 including those comments made during a public hearing on
January 8, 2018, hosted by EPA. This rule revision is required to change the official primacy relationship
between EPA and IDWR, but is separate from the program transfer. See the online Docket
(https://www.regulatioiis.gov/docket?D=EPA-HQ-QW-2017-0584) for more information on this rule
revision.
Following the completion of the proposed program transfer and the revision to 40 CFR Part 147 Subpart
N, Idaho will no longer maintain primacy for the Class II injection well program in Idaho and EPA will
assume the responsibility for direct implementation of the Class II UIC program in Idaho, pursuant to the
federal Class II UIC regulations. Because the federal Class II UIC regulations allow for issuance of permits
for Class II wells, subject to the requirements specified therein, potential owners and operators may
begin submitting permit applications to EPA to operate Class II injection wells. Currently, EPA directly
implements the Class II program in nine states, two territories, the District of Columbia, and for all tribes
except for the Navajo Nation and Fort Peck Tribes (Figure 2). Idaho will be the tenth state in which EPA
is the primary agency responsible for compliance and enforcement of Class II injection wells (See below,
EPA's Class II Implementation Program for more information).
Transferring authority of the Class II program to EPA does not mean that Idaho cannot once again
achieve primacy over the program. States, tribes, and territories may apply with EPA to resume state
primacy over the Class II program. This can be carried out under Sections 1422 or 1425 of the SDWA,
and would need to meet the requirements of 40 CFR Part 145, Subpart C. In order for EPA to approve
state primacy for the Class II program, the state primacy program must be at least as stringent as EPA's
regulations (for programs authorized under SDWA 1422) or effective in protecting Underground Sources
of Drinking Water (for Class II programs authorized under SDWA 1425). The process for doing so would
be very similar to Idaho's original application for primacy that occurred back in the 1980's.
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
oU
DC
MS AL
0 Pujrto Rico
irgin Islands
American Samoa
£ Indian Tribes (not Navajo, nn. and Ft. Peck. FP)
Commonwealth of Northern Mariana Islands
£ Guam
EPA Program
1422 Primacy Program
1425 Primacy Program
OK AR
MS AL
0 Puerto Rico
Virgin Islands
0 American Samoa
0 Indian Tribes (not Na vajo. NN, and
Commonwealth of Northern Mariana Islands
EPA Program
1422 Primacy Program
1425 Primacy Program
0 Guam
Figure 2. Color-coded map of Class II primacy across the United States and the result of
transferring the Class II Program in Idaho.
Authorization of Class II Injection Wells in Idaho as a Result of Program Transfer
This section explains how the transfer of Class II program authority from Idaho to EPA would ultimately
allow for authorization of Class II UIC wells in the state. Previous to such transfer, Class II wells could not
be authorized in the state. This is because Class II wells are banned under Idaho's approved Class II UIC
program (approved by EPA in 1985), and this approved program represents the "applicable" UIC
program under the Safe Drinking Water Act (See 40 CFR 147.1). Therefore, although the state
legislature reversed the ban on Class II wells in 2013, thus allowing Class II wells as a matter of state law,
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
Idaho could not issue Class II UIC permits because the applicable UIC program requirements for the state
codified in Part 147 continued to reflect the Class II ban in the 1985 approved program. The transfer of
authority from Idaho to EPA results in EPA directly implementing the Class II program, pursuant to the
federal Class II UIC regulations codified in 40 CFR Parts 144 and 146. As discussed in more detail below,
these regulations authorize the issuance of permits for Class II wells, subject to the requirements
specified therein.
On June 7, 1985, EPA approved an application package submitted by IDWR requesting primacy over
Class I, II, III, IV, and V injection wells in the state of Idaho. This application package contained a number
of documents including (but not limited to): Rules and Regulations: Construction and Use of Injection
Wells; a Memorandum of Agreement between the State of Idaho and EPA RIO; A statement of legal
authority in the form of an Attorney General's Statement; and a Program Description. These documents
form the administrative basis for how Idaho planned on implementing the UIC program in the state.
Class II wells were explicitly banned in the regulations submitted as part of the primacy package that
EPA approved in 1985. For example, Rule 3,2,1. of the Rules and Regulations: Construction and Use of
Injection Wells, states that, "[t]hese regulations do not authorize permitting, construction or use of any
Class I, II, or III injection well.
The state initiated a process for removing the Class II ban under state law in 2010. More information
was provided by Tim Luke, Water Bureau Chief at IDWR, in a comment submitted to EPA (Docket ID:
EPA-HQ-OW-2017-0584-0248) regarding this rule revision: "...In 2010, Idaho experienced rapid growth
in oil and gas development in the Payette Basin. Since that time, the Idaho Department of Water
Resources (IDWR) has been working with the EPA to revise its UIC primacy to update the Class V
injection well program and add a Class II injection well program..." In 2011 and 2012, the state wrote
new rules and regulations for injection wells that clearly allowed the use of Class II injection wells. The
state conducted a public hearing (https://adminrules.idaho.gov/bulletin/2012/10.pdf#page=826) in
2012, and after that published the adoption of the proposed rule
(https://adminrules.idaho.gov/bulletin/2013/01.pdf#page=203). and final approval of the rule
(https://adminrules.idaho.gov/bulletin/2013/05.pdf#page=30i). This effectively removed the ban on
Class II injection wells under state law. One can go to the IDWR legal archives to learn that Idaho Code,
Title 42, Chapter 39 "Injection Wells" (as of the 2016 edition) now contains the definition of a Class II
injection well. Rule 37.03.03, Rules and Minimum Standards for the Construction and Use of Injection
Wells from the same year specifies under section 37.03.03.001 that ",..[t]he construction and use of
Class I, III, IV, and VI injection wells are prohibited by these rules" (notice that the prohibition against
Class II wells is no longer included). Class II wells are also omitted from the section on prohibitions,
Idaho Code 37.03.03.040. Idaho Code 37.03.03.045 contains the state's Class II regulations.
Although the state's regulations were amended to allow Class II wells, these revised state regulations
were not, and have not been, approved by EPA. UIC regulations codified in 40 CFR §147 Subpart N
constitute the applicable program requirements for UIC purposes; accordingly, even though the state-
wide ban on Class II wells was removed by state legislative action in 2012 and 2013, IDWR could not
issue Class II permits. Under federal regulations, Class II wells are allowable. Following a voluntary
transfer of Class II UIC authority from IDWR to EPA and once codified in 40 CFR Part 147 Subpart N, Class
II wells would be allowable and subject to the requirements in EPA's regulations.
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
EPA's Policy to Delegate to the States
Since announcing the program transfer on November 27, 2017, EPA received a question about how a
specific guidance document entitled, "EPA Policy Concerning Delegation to State and Local
Governments," signed in April 14, 1984 by the then-current Administrator of EPA, played a role in the
program transfer. This document provides a 'general approach which the Agency will take in resolving
[delegation approvals]." EPA commonly works with states programs to authorize primary regulatory
and enforcement responsibilities at the state or tribal level. While EPA encourages states to apply for
and operate UIC programs across the nation, the Agency foresaw situations where states may wish to
return primacy to EPA. Under 40 CFR §145.34(a), "[a] State with a program approved under this part
may voluntarily transfer program responsibilities required by Federal law to EPA..." Upon the written
request of the Idaho Department of Water Resources transmitted on August 25, 2017 and pursuant to
40 CFR §145.34 and other relevant regulation, EPA began procedures to voluntarily transfer the Class II
UIC program from the state to EPA.
Class II Program Transfer and the National Environmental Policy Act (NEPA)
Many have reached out to EPA wondering if the transfer of the Class II program may be considered a
"major federal action" that should be preceded by a comprehensive environmental review under the
NEPA. EPA's position is that the transfer of Class II authority cannot result in the development of any
underground injection wells without a prospective operator first undergoing EPA permitting
requirements. All new Class II injection wells are prohibited until the owner or operator is authorized by
a permit (See, 40 CFR § 144 Subpart D). In the event that an owner or operator applies for a permit to
construct and operate a Class II injection well, EPA's regulations specifically provide that UIC permits are
not subject to the environmental impact statement provisions of NEPA (40 CFR 124.9(b)(6).) This
regulation codifies the "functional equivalence" doctrine in the case law, under which formal
compliance with NEPA is not necessary when a federal agency is engaged primarily in an examination of
environmental questions and where substantive and procedural standards ensure full and adequate
consideration of environmental issues. Warren Cty v. North Carolina, 528 F. Supp. 276, 286 (E.D. N.C.
1981). Under this doctrine, courts have found EPA to be exempt from NEPA procedural requirements
for actions under the SDWA. See Western Nebraska Resources Council v. EPA, 943 F.2d 867 (8th Cir.
1991); In re American Soda, UIC Appeal No. 00-1 and 00-2, 9 EAD 280,291 (June 30, 2000).
EPA's Class II Direct Implementation Program
During the public comment period regarding a revision to 40 CFR §147 Subpart N, many commenters
expressed concern that operation of Class II injection wells may impact human health and the
environment in a negative way. While the purpose for conducting a public comment period during this
time was to accept comments on the rule revision to 40 CFR Section 147 Subpart N (and comments
regarding EPA's implementation of the Class II program being outside of that scope), EPA felt it
important to provide additional information on how the Agency directly implements the program across
the nation in this section. This section provides information addressing: the protection of underground
sources of drinking water (USDWs), concerns with documented cases of mechanical integrity test (MIT)
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
failures, the possibility of underground injection resulting in induced seismicity, how wells are bonded to
protect against future environmental liabilities, and how aquifers are exempted from status at USDWs.
This section provides brief introductions to each idea, along with links where one may find additional
information. Note that this represents a number of topics that the Agency felt were important to
discuss, and does not represent all concerns that were brought to EPA's attention during the past few
months. If one has follow-up questions to these topics or requests additional information on topics not
included in this section, we encourage people to visit our website (https://www.epa.gov/uic) for more
information.
Protecting Underground Sources of Drinking Water: Class II Permits
The Agency regulates the underground injection of Class II fluids through a permitting program that is
designed to protect USDWs (See, 40 CFR §144.3 for a definition of a "USDW," see, 40 CFR 144.12 for an
explanation of "Prohibition of movement of fluid into underground sources of drinking water."). Class II
permit applications are reviewed by EPA to ensure that construction, operating, monitoring, and
reporting are conducted in a manner pursuant to and in accordance with the criteria and standards
applicable to Class II wells. Following this review, a draft permit is prepared by the Agency for permit
applications that meet the regulatory standards set by EPA, which is then noticed for public comment.
Following a public comment and public hearing procedure (if requested by the public), EPA collects
comments made on the draft permit and must write a responsiveness summary addressing any
comments timely submitted. Finally, the Regional Administrator or proper delegate makes a final
permit decision based on the administrative records created from the draft permit, public comments,
transcript(s) of any public hearing(s), the Agency's response to comments, and other supporting
documents on file.
Class II permits protect underground sources of drinking water. Pursuant with 40 CFR § 144.12, "no
owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct any other
injection activity in a manner that allows the movement of fluids containing any contaminant into
underground sources of drinking water...[and the] applicant for a permit shall have the burden of
showing that the requirements...are met." Class II permit applications must contain information that
can be used to ensure that USDWs are protected. This includes requiring an operator to submit maps,
data, and narrative descriptions of the area surrounding an injection well at the surface, any USDWs in
the area of review, geologic subsurface data, proposed operating data, construction procedures, and
more. More information can be found in the EPA Form 7520-6, Underground Injection Control Permit
Application.
The federal UIC program establishes Class II permitting requirements based on the regulations in the
CFR. For a complete overview, consider reading 40 CFR Part 144. EPA must establish conditions as
required on a case-by-case basis in certain situations (40 CFR §144.52). The regulations also require EPA
to impose on a case-by-case basis "such additional conditions as are necessary to prevent the migration
of fluids into underground sources of drinking water" (40 CFR 144.52(a)(9)).
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
Mechanical Integrity Testing
Under Class II permit requirements, Class II wells are held to construction standards established by EPA
in regulation. All new Class II wells must inject into a formation which is separated from a USDW by a
confining zone (40 CFR 5146.22(a)). Wells must also be cased and cemented to prevent the movement
of fluids into or between USDWs (40 CFR §146.22(b)). In developing construction requirements, factors
considered include: depth of the injection zone, depth to USDWs, estimated injection parameters,
lithology of the injection zone, size and grade of casing, and quality of cementing (40 CFR §146.22(bHi~
vi).
During operation, to ensure the continued integrity of the injection well EPA establishes monitoring
requirements that often include: monitoring of the injected fluid composition; and observations of
injection characteristics such as pressure, rate, and volume (40 CFR §146.23). Additionally, to confirm
that there is no significant leak in the casing, tubing or packer, EPA requires operators to conduct a
tubing-annulus pressure test to confirm zonal isolation. To show that there is no significant fluid
movement into an underground source of drinking water through a vertical channel adjacent to the
injection well bore, EPA requires the operator to conduct temperature logs, noise logs, or cement record
evaluations.
Consideration for Induced Seismicity
The agency works with states and other stakeholders to understand and address concerns over the
potential for injection-induced seismicity. EPA issued a report entitled: Minimizing and Managing
Potential of Injection-Induced Seismicity from Class II Disposal: Practical Approaches. This report,
developed by state and EPA experts, provides background information on induced earthquakes and
identifies some tools to help state and federal programs evaluate and monitor for these concerns. More
information on this report can be found at https://www.epa.gov/uic/underground~iniection~control~
national~technical~workgroup~final~issue~papers.
Plugging and Abandonment Financial Assurance
Where EPA administers the Class II program, owners or operators must satisfy a financial responsibility
requirement by submitting proof of a financial instrument that meets the approval of the UIC Program
Director in accordance with 40 CFR §144.52(a)(7). To construct and operate a Class II well, an owner or
operator must demonstrate and maintain financial responsibility, which should be equal to the cost of
hiring an independent third-party firm to close, plug, and abandon the well. Owners or operators may
be eligible to use one of several types of instruments to maintain adequate financial resources to
properly close, plug, and abandon an injection well, in accordance with 40 CFR §144.52(7). The UIC
Program Director may draw upon a financial instrument (i.e., inform the instrument provider of
performance failure) if an owner or operator is unable or fails to plug the covered injection wells
properly due to any reason, such as in the case that the owner or operator declares bankruptcy or does
not have adequate funds available. More information here:
h ttps://www. epa. go v/sites/production/files/2016
11/documents/revised epa class ii fr guidance november 2016.pdf.
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Supplemental Information Sheet: Class II Program Transfer from the Idaho Department of Water Resources to EPA
Aquifer Exemption Criteria
An aquifer is a geological formation, groups of formations, or part of a formation that is capable of
yielding a significant amount of water to a well or spring. Under UIC regulations, EPA may exempt
aquifers or portions of aquifers that do not currently serve as a source of drinking water and will not
serve as a source of drinking water in the future, based on certain criteria. An aquifer may only be
exempted from USDW status if: 1) it does not serve as a current source of drinking water, 2) it cannot
now and will not in the future serve as a source of drinking water, and 3) the total dissolved solids
content of the ground water is more than 3,000 and less than 10,000 mg/l and it is not reasonably
expected to supply a public water system (See 40 CFR §146.4(b)). There are currently about 3,300
aquifer exemptions across the United States, the vast majority of which occur between 1,000 and 9,000
feet below the ground. Aquifer exemption boundaries are determined in a variety of ways. Some aquifer
exemptions are defined as a radius (typically / or Vz mile) around the well associated with the
exemption and are circular. Others are defined by one or more grids in the Public Land Survey System
and are squares or combinations of squares. Even once an aquifer has been exempted, USDWs in the
surrounding area continue to be protected under the Safe Drinking Water Act. EPA has published an
interactive aquifer exemption map that can be found here:
https://epa.maps.arcgis.com/apps/MapSeries/index.html7appich426ef9d346f9487e96ee5899ab67a2e4
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