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Laws and Regulations Applicable to the Edwards Aquifer For the Edwards, there are two primary issues that must be addressed by laws and regulations: 1) quantities of water pumped, and; Regarding pumping, a decades-long battle over who owns, controls, and uses Edwards Aquifer water has not been as pitched recently, but it is still not quite over. Regarding water quality, the issue has barely been addressed will likely take many decades to resolve. Many of the stumbling blocks on the path toward management of the Edwards were set in place by several fundamental flaws in Texas water law. One of the main flaws is that groundwater is treated as if it were completely separate and different from surface water. In the 1800s, the movement of groundwater was deemed by courts to be unknowable and in the realm of the "occult", so legislators refused to make any laws regarding it use. Today we know that surface water and groundwater are interconnected and inseparable, but for over a century the "separation myth" has been a major impediment to the development of an integrated and conjunctive body of water law in Texas (Kaiser, 1987). For the most part, we are still living with the mistaken idea they are separate resources. Even though it's all the same water, the differences in how surface water and groundwater are regulated in Texas are profound. Surface water is the property of the State and its use is highly regulated, while Edwards groundwater is the property of whoever's land it is under and until recently there were very few regulations. To use surface water, one must apply for a State permit and rights are assigned based on a "first in time, first in right" method. Use of groundwater, however, is governed by the other main flaw in Texas water law, the "rule of capture". This rule was adopted by the Texas Supreme Court in 1904 in a case called Houston & T.C. Ry. Co. v. East (the East case). The rule of capture allows landowners to pump as much water as they desire, without liability to surrounding landowners who might claim that pumping has depleted their own wells. The rule of capture is also called the "law of the biggest pump", because anyone can pump as much water from under their land as they like, as long as they put it to a beneficial use. So, just one person could use ALL of the Aquifer water if they could pump it out and put it to use. This was painfully pointed out to many users when Ronnie Pucek opened his fish farm in 1991 and began using as much water as one fourth of all the people in San Antonio. So for a long time, we had a situation in which everyone had infinite rights to a resource that was, in fact, finite. We had more "rights" than we have water.
In most of Texas, landowners cannot protect themselves from harm caused by larger and deeper pumps, but the courts have developed several exceptions to the rule of capture. Malicious pumping for the purpose of harming a neighbor is not allowed, causing land subsidence is not allowed, and drilling a slant well that crosses adjoining property is not allowed. Pumping water for wasteful purposes is also not allowed, but in practice, the courts have not placed limits on wasteful exploitation of groundwater. For example, in the 1955 case City of Corpus Christi v. City of Pleasanton, the Supreme Court refused to find waste even though 10 million gallons of groundwater per day was lost to evaporation and bank seepage while being transported through surface channels. Very little water was put to beneficial use, but that did not matter to the court. The fact that the law does not recognize any connection between surface water and groundwater only complicates matters. As use of groundwater from the Edwards became greater over time, water that used to emerge at springs was pumped from wells instead and eventually placed back in the rivers by wastewater treatment plants, mainly those owned and operated by the San Antonio Water System. For decades the State had been assigning surface water rights to people whose water had originated as springflow decades earlier, but now it originated as wastewater treatment plant discharges. Because Texas law affords an absolute right of ownership over groundwater, San Antonio has no obligation to release any water downstream to meet the demands of surface water rights holders. This obviously has the potential to create a big problem. People who have been assigned surface water rights might not have any water at all if the City decides to reuse its wastewater instead of discharging it downstream. In recent years San Antonio has become very proactive in developing uses for its treated wastewater. Luckily for those downstream, San Antonio has remained committed to being a good neighbor and has always said it intends to continue release of enough water to support downstream ecosystems in the San Antonio River and San Antonio bay. After the region experienced a terrible drought in the 1950s, numerous water planning studies were undertaken but little progress was made toward management of the Edwards Aquifer or toward development of other water resources. As a response to the 50s drought, the Edwards Underground Water District was created in 1959 and it was charged with conserving and protecting water in the Aquifer. However, it had no authority to restrict groundwater pumping, and for over 40 years it was mainly a data collection agency. In 1961, the State released the Texas Water Plan that discouraged over-reliance on the Edwards and recommended several new reservoirs, of which only Calaveras Lake was ever constructed. An update to the 1961 plan was produced in 1966, with a final version in 1968, and it outlined an ambitious program of statewide reservoir construction with those around San Antonio being in Phase I. Reservoirs to meet San Antonio’s needs were the Cuero I, Cuero II, Goliad, Cibolo, and Cloptin Crossing. The most significant contribution of the 1968 Texas Water Plan was the determination that based on historical rates of recharge and discharge, withdrawals from the Edwards should not exceed 400,000 acre-feet per year. As we shall see, this number stood the test of time. At least until 2008. In May 1991, the Lone Star Chapter of the Sierra Club filed a lawsuit against the U.S. Fish and Wildlife service claiming the Service was not adequately protecting endangered species that depend on the Aquifer. The Sierra Club argued that Comal and San Marcos Springs could dry up if unrestricted pumping continued and that would constitute a "taking" as defined by the Endangered Species Act. The Sierra Club asked that the Service be required to ensure minimum springflows to protect the endangered species. After a two year trial, in January 1993 Federal Judge Lucius Bunton of the U.S. District Court in Midland ruled in favor of the Sierra Club and others who had joined the suit along with the Club. The court found that if unrestricted withdrawals continued, endangered and threatened species would be "taken" as defined by the Act. The court also found the Fish and Wildlife Service had failed to implement a recovery plan for San Marcos and Comal Springs and had caused risk or jeopardy to the endangered species. Judge Bunton ordered that springflow must be maintained even during a drought like in the 1950s. He directed the Texas Water Commission to prepare and submit a plan to ensure springflows, and he directed the Service to determine springflow levels that would result in "take" or "jeopardy" of the species. The Service subsequently determined that level was 150 cubic feet per second at Comal Springs; however, a study commissioned by the Service and released in May 2000 predicted that even at flows as low as 30 cfs, 60% of the fountain darter's habitat would be maintained. This could eventually have far-reaching impacts and give regional officials more options than simply cutting back use when flows at Comal Springs decline. In the 1993 ruling, Judge Bunton also announced the Texas Legislature had to enact a regulatory plan to limit withdrawals from the Aquifer or he would implement his own plan, which would mean the federal government would be in charge of the Aquifer. Even so, the federal government is usually reluctant to exert control when matters can be handled effectively by local governments. So the State was given a chance to act and in May 1993 the Texas Legislature passed Senate Bill 1477 which replaced the Edwards Underground Water District with the Edwards Aquifer Authority. The Bill authorized the new agency to issue permits and regulate groundwater withdrawals from the Edwards. It essentially ended the right of free capture in the Edwards region and it laid out the legal framework for assigning ownership of water to people who had been using it for many years. The bill also created means to market groundwater rights by making permits transferable (with some restrictions), and it set a cap on permits at 450,000 acre-feet annually, to be reduced to 400,000 acre-feet in 2008, the number identified in the 1968 Texas Water Plan. It also provided for short term permits for additional use when rainfall and recharge are high, required the Authority to adopt a Critical Period Management Plan to reduce pumping during droughts, and addressed the question of preserving endangered species habitats by requiring the Authority to provide continuous minimum springflows. In August 1993, before the new agency could be seated, the U.S. Department of Justice put the legislation on hold because it wanted to determine if the new law violated the Voting Rights Act by replacing the elected Board of the Edwards Underground Water District with an appointed board of the new Edwards Aquifer Authority. In November 1993 the Justice Department ruled that SB 1477 did indeed violate the Voting Rights Act. This was remedied in June 1995 when the Legislature passed House Bill 3189, which provided for an elected Authority board. On June 28, 1996 the Authority began operation with an interim, appointed board, and an election to replace interim board members with elected members was held in November 1997. Today, the Authority has the power to manage, conserve, preserve, and protect the Aquifer, increase recharge, and prevent waste. If the federal courts feel the Authority is not effectively doing these things, there is still the chance the federal government could step in and take control.
The new Authority set about the process of establishing rules by which the goals of SB 1477 will be met and pumping demands on the Edwards reduced. Initial regular permits were to be issued by the Authority based on historic use from the Aquifer from 1972 to 1993. Over 1,000 applications were filed, and the total amount of water applied for was much more than the 450,000 acre-feet cap. The Authority had the difficult job of deciding who got how much. Meanwhile, several challenges to the new rules were issued, and the Authority’s rules ended up being invalidated twice. In one case, the Living Waters Artesian Springs (the catfish farm) sought an injunction against processing of the applications. It claimed the rules were adopted in violation of the Texas Administrative Procedures Act, which requires reasoned justification in writing before rules can be adopted. In December 1998 all the Authority’s rules that had been adopted up to that time were held to be invalid. In another challenge two pecan farmers from Medina county, Glenn and JoLynn Bragg, filed a suit under the Texas Private Real Property Rights Preservation Act, claiming the Act required the Authority to perform a Takings Impact Assessment (TIA) before adopting rules and issuing permits. Basically, the argument was the Authority had not adequately assessed the impact of what it was doing. Judge Mickey Pennington ruled in favor of the plaintiffs and again invalidated the Authority’s rules. After having all it's rules invalidated twice, the Authority began working very hard to do whatever necessary to come up with a "bulletproof" set of rules that could survive all legal challenges. The Authority spent almost a year following the process outlined in the Texas Administrative Procedures Act which includes assessment of the impact of rules on small businesses, government entities, and the public. In January 2000 the Authority got a boost when an appeals court ruled that Judge Pennington erred in deciding the rules were invalid because they violated the Property Rights Preservation Act. Final Rules were adopted by the Authority in late 2000. On January 9, 2001 the first permanent Edwards Aquifer pumping permits were issued. It was a major milestone for management of the Edwards Aquifer. Members of the Stein family, who drilled one of the first irrigation wells in Medina county, were handed the first permit to pump 224 acre-feet from the Aquifer each year. Overall, 308 permits were issued granting rights to 133,186 acre-feet, about a third of the volume the Authority is authorized to allocate. More final permits were issued in February 2001, leaving about 250 contested permits to be sorted out in court. In February 2002 the Texas Supreme Court issued a landmark decision that affirmed the Authority's powers to regulate pumping. In an appeal of the Bragg case, the court ruled the Property Rights Preservation Act has an exception for regulating groundwater, and the EAA need not prepare a Takings Impact Assessment before adopting rules. The 1994 legislation that established the Edwards Aquifer Authority included conflicting provisions regarding total pumping and issuance of rights. These conflicts were not resolved until 2007. The agency was required to limit pumping to 450,000 acre-feet per year by 2004, and to reduce pumping to 400,000 acre-feet by 2008, but it was also required to issue minimum annual pumping rights to users who could prove their use during the prior 21 years. Those rights turned out to be far in excess of 450,000 acre-feet. After failed attempts in two legislative sessions to address the problem, the EAA attempted to resolve the issue on its own in December of 2003 by creating a class of interruptible rights. The Authority designated about 10% of most pumping permits as "junior rights" which could not be used if Aquifer levels dropped below certain triggers. In January of 2007 this scheme was dealt a serious blow when Texas Attorney General Greg Abbott issued an opinion that concluded the Edwards Aquifer Authority did not have the statutory authority to reduce the withdrawal rights of permit holders or issue interruptible "junior" withdrawal rights. EAA officials said they didn't consider themselves bound by the Attorney General's opinion and would seek to have the legislature ratify the junior/senior permitting scheme by statute. Later in 2007, the Legislature did indeed finally address the issue, but not by ratifying the EAA scheme. Over the objections of environmentalists and regional entities like the Guadalupe-Blanco River Authority, the legislature raised the pumping cap to 572,000 acre-feet. Also in 2007, the Texas legislature directed the EAA and other state and municipal water agencies to participate in a collaborative, consensus-based stakeholder process to develop a plan to protect the federally-listed species dependent on the Edwards Aquifer. This is known as the Edwards Aquifer Recovery Implementation Program (EARIP). The group was given a 2012 deadline for preparing an approved Habitat Conservation Plan for managing the Aquifer to preserve the listed species at Comal and San Marcos Springs. The Legislature directed that the Plan must include recommendations regarding withdrawal adjustments during critical periods that ensure the federally-listed species associated with the Edwards will be protected. As of mid-2010, the EARIP group is considering a potential package of options that range from recreation management to large scale engineered solutions like Aquifer Storage and Recovery and Recharge/Recirculation schemes. At the beginning of this essay, I mentioned the battle over Edwards pumping is not quite over. Until 2008, most believed that it was. In November of 2008, the fundamental premise of Edwards regulation, the idea that landowners do not have the right to capture unlimited amounts of groundwater, was brought into question. Most believed the 2002 Supreme Court decision in the Bragg case affirmed the position that Edwards pumping could be regulated. Since 2002, the EAA has proceeded to issue permits and allocate groundwater rights. In 2008, several appeals court decisions clouded the picture. In the 4th Court of Appeals, Justice Steve Hilbig ruled that landowners involved in a lawsuit with the EAA have some vested ownership rights of groundwater beneath their land and their "vested right in the groundwater beneath their property is entitled to constitutional protection." The ruling, along with a similar ruling in a case in Del Rio, have set up a Supreme Court showdown over the rule of capture in Texas. While the rule of capture is once up again up in the air in the Edwards region, the issue of protecting water quality looms even larger as one that remains unresolved. Ironically, a 1990s Supreme Court decision on the rule of capture served to complicate the issue of water quality protection by encouraging a new layer of governmental jurisdiction over areas that contribute water to recharge. More than 90 years after the East decision, the Texas Supreme Court reviewed the ruling in Sipriano V. Great Spring Waters of America, et al. In this case, the owner of a domestic well claimed that pumping by the bottlers of Ozarka water had dried up his well, and he asked the court to protect his private property interest in groundwater by imposing liability on Ozarka. Many observers thought the Texas court would modify the rule of capture to protect rural homeowners and domestic users of water. They were wrong. The court unanimously affirmed the rule of capture. However, it left the door open for legislative restrictions by affirming that pumping groundwater within the jurisdiction of a Groundwater Conservation District (GCD) may be limited. Groundwater Conservation Districts were first created in Texas in 1949 and are units of local government with locally elected boards that historically were focused mainly on developing and implementing conservation plans, not limiting pumping. Meanwhile, most politicians had come to recognize the rule of capture is basically an unworkable free-for-all, because it gives everyone unlimited rights to a finite resource. Even so, none had been willing to tackle the issue head on, and you can't really blame them. In Texas, politicians who dare to suggest that private property rights are less than paramount are routinely placed on rails and escorted from town wearing tar and feathers. But in 2001, in the wake of the Ozarka decision, the Legislature passed laws making it easy for property owners to form Groundwater Conservation Districts by petition. It gave Districts the authority to regulate spacing and production from wells, and deemed GCDs to be the State's preferred method of groundwater management. This provided a frame of "local control" for pumping regulations, and it allowed lawmakers to avoid certain political doom. Since 2001, the number of such districts has more than doubled to almost 100 (in May 2009). All the Districts are currently participating in a process in which local residents determine the "Desired Future Conditions" (DFCs) for their aquifer. Most of the time, the Desired Future Conditions will involve pumping limits. While aquifers occur regionally, the boundaries of Groundwater Conservation Districts are almost always drawn along county lines, so areas outside of a Groundwater Conservation Districts that use the same aquifer have no voice in the process of defining DFCs. On top of that, there are several additional layers of jurisdiction for planning and management and an array of confusing overlaps between all of them. Groundwater Management Areas (GMAs) were designated by the Texas Water Development Board in 1995 to provide boundaries to encourage the cooperation of management agencies and research. There are three GMA's covering various portions of the Edwards region. In addition, Regional Water Planning Areas (RWPAs) were required by Senate Bill 1 in 1997 and are intended to provide a framework to develop a state water plan. Under the Planning Area process, the state is divided into 16 regions, and each is required to work on a 5-year cycle to identify future water demands and develop a plan to meet those needs. There are three RWPAs covering various other portions of the Edwards region.
Edwards Water Quality Protecting Edwards water quality is likely to be one of the great natural resource management challenges in Texas in this century. Since there is a well-established scientific link between development and runoff water quality, Edwards water quality protection mainly comes down to managing growth and limiting impervious cover. Protecting the Recharge Zone is not enough. It is just as important to protect the quality of water that runs off the Edwards Plateau and ends up as recharge. But with all the layers of jurisdiction and authority shown in the image above, none of which align with the Edwards' hydrogeologic boundaries, it almost goes without saying that managing the Edwards Plateau for water quality will be fragmented and inconsistent. Contributing Zone protections are hugely complicated by the fact that people living on the Edwards Plateau are not Edwards Aquifer users. They do not readily accept the notion of restricting their area's development and implementing rules for the sake of some other people's water supply, especially since they perceive that Edwards users have not been especially proactive in managing development over their own Recharge Zone. At present, there is simply no institutional or regulatory framework that can effectively protect Edwards water quality. Most of the Edwards Plateau is not within the jurisdictional boundaries of the Edwards Aquifer Authority, and an expansion seems unlikely. Although the enabling legislation of the EAA seems to authorize that agency to implement water quality rules, the legislation's author has said it does not. The issue was hotly debated in the 2003 and 2007 legislative sessions and no resolution was reached. It was not addressed in the 2009 session. The EAA has several times delayed development of water quality rules because it was concerned such action would result in a private property rights backlash and legislative retaliation. Many contend the Texas Commission on Environmental Quality is the proper agency to regulate for water quality, but so far that agency has not been especially proactive in developing water quality controls, and like the EAA, the TCEQ's authority to apply rules to the Edwards does not extend to most of the Contributing Zone. Meanwhile, there are also significant cultural obstacles to effective water quality management. Texas is a state that is very respectful of private property rights, and many will simply not accept the notion that land use and development should be regulated. On the other hand, a growing number of people don't believe anyone has a private property right to ruin common resources like air and water. However, powerful development interests usually get their way, and so far no lawmakers have been willing or able to take a big-picture view and develop a comprehensive water quality management approach for the Edwards. Texas must eventually find a balance between private property rights and protection of common natural resources. Most environmentalists feel that all the existing rules are a sad joke that are more about avoiding lawsuits than Aquifer protection. The staffs of the TCEQ and the EAA do the best job they can within the legal and regulatory framework they work under, which does not allow them to do all that much. For example, the image below shows how all the requirements were met to build a high-density residential subdivision around a collection of cave openings. This is a site that probably should not have been developed at all, but in Texas, failure to give landowners and developers free reign is the same as asking for a lawsuit. In short, environmentalists believe that all the rules are essentially toothless and inadequate.
Laws and Regulations Applicable to the Edwards Aquifer A thorough understanding of the laws and regulations applicable to the Edwards Aquifer is essential to get a grasp on the complex legal issues involved. They are also important for understanding how we are planning on managing the resource in the future. Reading them is about the most boring endeavor you'll ever undertake but it is an extremely important one! The Endangered Species Act Much of the 1990s litigation involving the Edwards Aquifer centered around the federal Endangered Species Act and its provisions. Everyone who reads it (including federal judges) will end up with a different interpretation and different conclusions about what it is supposed to do and how far it is supposed to go. Proponents say it is an absolutely critical piece of environmental legislation that ensures protection for many endangered plants and animals. Others say the Act has been used simply to assert control over natural resources, not to protect species, and they argue that only cute, fuzzy animals have been protected. If you count bacteria and microbes, then there are probably endangered species living under virtually every rock! So then, is there room for people in the United States or does the ESA essentially make the entire country a big museum? Does the ESA say that every species has to be preserved forever in its natural habitat without any regard for cost or impact on humans? Read it and decide for yourself! THE FEDERAL ENDANGERED SPECIES ACT
Senate Bill 1477 and House Bill 3189 Texas Senate Bill 1477 is also a very important piece of legislation regarding the Edwards Aquifer. This was the Bill that ended the right of free capture in the Edwards region...landowners no longer have the right to pump as much water from under their land as they can put to a beneficial use. In support of the Bill, many argued that something had to be done because the right of free capture meant water management was a complete free-for-all and we had more "rights" than we have water. Others insist the Bill constitutes a taking of vested property without any compensation. Initial court challenges resulted in a finding that 1477 was unconstitutional because it replaced the elected board of the Edwards Underground Water District with a new appointed board of the Edwards Aquifer Authority. House Bill 3189 remedied this situation and provides for an elected board. JUDGE'S COMMENTS ON TEXAS SENATE BILL 1477
TCEQ and EAA Rules Rules set forth by the state of Texas and the Edwards Aquifer Authority are also very important for managing the Edwarde. Rules are NOT laws, but in reality there is little functional difference and rules essentially carry the weight of law. The idea behind rulemaking is that lawmakers cannot possibly address every single issue, so rulemaking authority is delegated to the staff of appropriate agencies and committees composed of interested people from around the state. Even a single individual can initiate rulemaking if you can get the proper agency in motion. The first regulations for protection of the Edwards were issued by the Texas Water Quality Board in 1970. They applied to the recharge and buffer zones in Kinney, Uvalde, Medina, Bexar, Comal, and Hays counties. The rules imposed regulations on underground storage tanks, above-ground storage tanks, and sewer lines. Water Pollution Abatement Plans (WPAPs) were first required in 1974. By 1984, WPAPs were required for residential, commercial, and industrial developments, and a geologic assessment was required for housing developments with 100 or more family living units and non-residential developments greater than five acres. Also in 1984, ongoing testing requirements for sewer lines were established. Beginning in 1977, the installation of new underground storage tank sites had to be approved prior to construction. Sites were required to have double-walled tanks and piping as well as a method of leak detection. In 1988, one-time fees began to be assessed for all types of development. They cover the cost of reviewing protection plans, conducting inspections, and other program efforts. The Legislature increased the fees in 1997 and again in 2008. In 1990, geologic assessment requirements for residential developments were decreased to 25 or more units and notification of recharge features was made mandatory. Today, a geologic assessment is required for all new, regulated developments except residential sites less than 10 acres. Significant rules changes went into effect in 1999. A design performance standard was applied to permanent water quality systems such as sand filtration basins, extended detention basins, and retention ponds with irrigation systems. Also, engineers are required to certify the construction of these systems and ensure maintenance. The 1999 rules changes brought a portion of the Contributing Zone under regulation (the portion within the eight counties that contain the Recharge and Artesian Zones). New rules were applied to activities that have the potential for polluting surface streams that will cross the Recharge Zone, such as large construction projects and installation of petroleum storage tanks. Since 1999, only minor TCEQ rule changes have been implemented. These changes include a 30-day public comment period for Contributing Zone Plan (CZP) applications, the posting of annual program expense reports, incorporating the requirements of the Texas Geoscience Practice Act for licensing of professional geoscientists that conduct geologic assessments, an additional prohibition for injection wells, re-mapping of portions of the regulated areas, and changes to the application fees. Since its start of operations in 1996, the Edwards Aquifer Authority has adopted only a handful of rules related to protecting Edwards water quality. None are aimed at managing development and impervious cover, which are considered by most environmental scientists to be the main threat to Aquifer water quality. The agency has rules prohibiting chemicals, standing water, and trash in the vicinity of wells, and in 2008 it made its first real foray into the water quality arena by adopting rules that require businesses storing large amounts of hazardous materials to take spill containment measures. In May of 2009 it proposed an extension of these rules to include some fire control measures. As mentioned earlier, there is no clear consensus regarding what agency has the duty and authority to develop water quality regulations. While the enabling legislation of the EAA seems to authorizeit to implement water quality rules, the legislation's author has said that is not what the Legislature intended. The EAA has several times delayed development of water quality rules because it was concerned such action would result in a private property rights backlash and legislative retaliation. Back in '95 when the web was new I used to post rules here because they weren't online anywhere else, but now the TCEQ and EAA both do a pretty good job of posting their rules on their own web sites, so here are links to their Rules pages:
SOLE SOURCE AQUIFER DESIGNATION An aquifer can be named a Sole Source Aquifer by the Administrator of the Environmental Protection Agency under Section 1424(e) of the Safe Drinking Water Act if the aquifer supplies 50% or more of the drinking water for an area and there are no reasonably available alternative sources should the aquifer become contaminated. The intention of the program is to prevent federal funding of projects which might contaminate an aquifer which is the sole or principal source of drinking water for an area. The Edwards Aquifer was the first to be designated a Sole Source Aquifer in 1975. After designation, EPA may review projects with federal financial assistance which are located in the project review area named in the designation. The project review area includes the surface recharge area of the aquifer and the area overlying the subsurface portions of the aquifer which are connected with the recharge area. It may also include the watershed area which contributes to the surface water flowing across the aquifer. The purpose of the project review process is to identify federally assisted projects which might contaminate the aquifer and then to work with the applicants to modify those projects so as to prevent contamination of the aquifer. As a final step, federal funding can be denied if the project is not modified to remove the hazard to the aquifer. For more about Sole Source Aquifers, check
out the page on the subject by
EPA
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