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Definition of a Public Water System in SDWA Section 1401(4) as
Amended by the 1996 SDWA Amendments
[Federal Register: May 8, 1998 (Volume 63, Number 89)]
[Notices]
[Page 25739-25746]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my98-120]
[[Page 25739]]
_______________________________________________________________________
Part VI
Environmental Protection Agency
_______________________________________________________________________
Definition of a Public Water System in SDWA Section 1401(4) as Amended
by the 1996 SDWA Amendment; Notice
[[Page 25740]]
ENVIRONMENTAL PROTECTION AGENCY
[FRL-6011-8]
Definition of a Public Water System in SDWA Section 1401(4) as
Amended by the 1996 SDWA Amendments
AGENCY: Environmental Protection Agency.
ACTION: Notice, request for comments.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is seeking
comments on the draft guidance ``Definition of a Public Water System in
SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments.'' The
draft guidance is published as an Appendix to this notice.
DATES: Comments must be submitted on or before June 22, 1998.
ADDRESSES: Comments should be addressed to Jon Merkle, Drinking Water
Office--(WTR-6), EPA Region 9, 75 Hawthorne Street, San Francisco,
California, 94105. Comments may also be submitted by E-mail to
merkle.jon@epamail.epa.gov. Commenters who want EPA to acknowledge
receipt of their comments must enclose a self-addressed, stamped
envelope.
FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll
free (800) 426-4791, or Jon Merkle, telephone (415) 744-1844.
SUPPLEMENTARY INFORMATION:
Purpose of this Notice
This notice publishes draft guidance which is intended to interpret
the broadened definition of what type of water suppliers will be
defined as a ``public water system'' in light of revisions to this term
by the 1996 amendments to the SDWA. Before the 1996 amendments, the
SDWA defined a ``public water system'' as a system that provided piped
water for human consumption to the public and had at least fifteen
service connections or regularly served at least twenty-five
individuals. The 1996 amendments expanded the definition of ``public
water system'' to include systems providing water for human consumption
that deliver this water by ``constructed conveyances,'' such as
irrigation canals.
The definition of a ``public water system'' is central to
delineating the scope of many SDWA requirements and this notice is
designed to solicit public comment on the specific provisions in the
new definition and its suggested implementation.
Specific Issue for Commenters to Consider
The Agency is particularly interested in comments on the
implementation of the provision regarding certain piped irrigation
districts (Section III of this document) in new section 1401(4)(B)(ii)
of the SDWA. The statute provides that a piped irrigation district in
existence prior to May 18, 1994, which provides primarily agricultural
service with only incidental residential or similar use shall not be
considered a public water system (PWS) if it or its users comply with
the alternative water or treatment exclusions for constructed
conveyance suppliers in section 1401(4)(B)(i)(II) or (III).
The statutory language is ambiguous as to whether all connections
to the system used for human consumption must comply with this
provision, or whether only as many connections for human consumption
must comply so as to reduce the remaining number of connections to
fewer than fifteen.
The draft guidance would require all connections to the irrigation
district that use the district's water for human consumption to comply
with the alternative water or treatment exclusions. More of the States
on the workgroup that commented on this question preferred the approach
taken in this draft guidance over the approach discussed below as an
alternative.
EPA's interpretation of this provision is based on the realities
that these piped districts were already considered PWSs under the pre-
1996 definition, that the only change in the status of these piped
irrigation districts in the 1996 SDWA Amendments was to provide them an
opportunity to use these exclusions to remove themselves from PWS
status, that this opportunity is not available to any other types of
piped water systems, and that compliance with these exclusions is much
simpler and less costly than the compliance required of PWSs with the
entire SDWA (which can be avoided by appropriate use of the
exclusions). Under these circumstances, EPA believes that the approach
taken in the draft guidance is equitable and appropriate and protective
of public health.
The approach taken in the draft guidance is supported by Report
104-169 of the Senate Environment and Public Works Committee on S.
1316, which states that ``[t]hese piped (irrigation) systems are not to
be considered public water systems if all of the connections to the
system comply with the requirements applicable under one or the other
of the exclusions for alternative water or point-of-entry treatment.''
(p. 89, emphasis added). The irrigation district provision enacted in
the SDWA Amendments is identical to the one first adopted in S. 1316 by
the Senate Committee.
Finally, this approach provides an incentive to piped irrigation
districts to give equal protection to all their connections for human
consumption. This would prevent situations from arising where some
users could receive untreated water while users at the excluded
connections receive water that meets the requirements of the exclusion,
i.e. it meets the equivalent level of protection provided by the
applicable national primary drinking water regulations (NPDWRs). EPA
believes that the support of the majority of the workgroup States that
expressed an opinion on this point indicates that they intend to apply
it in a way that would avoid unfairness to irrigation districts which
seek in good faith to comply with the exclusions, but are prevented
from applying them to all connections because a few users refuse to
allow the use of the exclusions for their water supply.
EPA and the workgroup considered an alternative approach, which
would allow qualifying irrigation districts to use the same method of
counting or excluding connections as suppliers of water through
constructed conveyances. Specifically, they could remove themselves
from PWS status by reducing the number of counted connections to fewer
than 15. This alternative approach would prevent any possibility of
unfairness to irrigation districts that seek in good faith to comply
with the exclusions but find that a few users refuse to allow the
system to take the actions necessary to qualify for the exclusions for
their water supply.
If after receiving comments on these two approaches, EPA decides to
revise the guidance to take the alternative approach, then questions
and answers 8 and 9 in the Questions and Answers section of the
guidance would be modified or deleted to reflect this decision.
Dated: May 5, 1998.
Robert Perciasepe,
Assistant Administrator for Water.
Appendix--Draft Guidance on Implementation of Amended Public Water
System Definition
Table of Contents
Introduction
Background
Application of Section 1401(4)
I. Systems Newly Defined As Public Water Systems
A. Statutory Language
[[Page 25741]]
B. Interpretation of ``Constructed Conveyance''
C. Identification of Public Water Systems Under the Revised
Definition
II. The Exclusions in Section 1401(4)(B)(i)
A. Statutory Language
B. Application of Section 1401(4)(B)(i)
1. The ``Other Than Residential Uses'' Exclusion
2. The Alternative Water and Treatment Exclusions
The Alternative Water Exclusion
The Treatment Exclusion
III. The Exclusion in Section 1401(4)(B)(ii) for Certain Piped
Irrigation Districts Questions & Answers
Disclaimer
Introduction
This document provides guidance to the primacy agencies
<SUP>1</SUP> and the U.S. Environmental Protection Agency's (EPA's)
regional offices in their implementation of the Safe Drinking Water
Act's (SDWA) 1996 amendments to the definition of a public water system
(section 1401(4)).
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\1\ Primacy agency refers to either the EPA or the State or the
Tribe in cases where the State or Tribe exercises primary
enforcement responsibility for the public water systems.
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This document incorporates and replaces the preliminary guidance on
this topic issued December 6, 1996, by Assistant Administrator for
Water Robert Perciasepe entitled ``Safe Drinking Water Act Amendment to
Public Water System Definition.'' It is a collaborative effort between
the Office of Water and the Office of Enforcement and Compliance
Assurance (OECA). OECA has concurred with the contents of this document
and will incorporate and implement it through their enforcement and
compliance assurance directives and operating protocols.
Background
The term public water system (PWS) is central to delineating the
scope of many SDWA requirements. Prior to the 1996 SDWA amendments,
Section 1401 of the SDWA defined a public water system as ``a system
for the provision to the public of piped water for human consumption if
such system has at least fifteen service connections or regularly
serves at least twenty-five individuals.'' In Imperial Irrigation
District v. United States Environmental Protection Agency, 4 F.3d 774
(9th Cir. 1993), the court ruled that the SDWA provisions governing
PWSs did not apply to an irrigation district supplying residences,
schools and businesses with untreated water through open canals. In
response, Congress changed the definition of public water system to
regulate under SDWA ``water (provided) for human consumption through
pipes or other constructed conveyances.'' This change reflected
Congress' understanding that the human consumption of such untreated
canal water could constitute a significant risk to public health, and
that appropriate measures were warranted to provide consumers of this
water with a level of health protection equivalent to that from
drinking water standards. At the same time, Congress provided several
means by which certain water suppliers could be excluded from this
definition, and provided that systems newly subject to SDWA regulation
under this amended definition would not be regulated until August 6,
1998.
The amended section 1401(4) does several things. First, effective
August 6, 1998, section 1401(4)(A) expands the definition of a PWS to
include suppliers of water for human consumption that deliver their
water through canals and other constructed conveyances. Second, section
1401(4)(B)(i) supplies methods by which connections to these newly
defined PWSs will not be considered ``connections'' if the systems or
users at these connections have taken specific actions to ensure
protection of public health. If, after the systems or users have taken
these specific actions to ensure protection of public health and the
systems no longer serve at least 15 service connections or 25
individuals, the systems will not be considered to be PWSs. Third,
section 1401(4)(B)(ii) also allows certain piped irrigation districts
to no longer be considered public water systems if the districts or
their users take specific actions to ensure public health.
As promised in the December 6, 1996 guidance, EPA convened an EPA-
State work group to develop more detail on the interpretation and
application of this new definition. State members of this work group
included drinking water program representatives for Arizona,
California, Georgia, Idaho, Texas and Washington. The work group
consulted with thirteen individual irrigation water suppliers and
irrigation trade associations within these States. The workgroup also
consulted with six organizations involved with community-based minority
health and welfare issues and interviewed three persons who use canal
water for human consumption.
Application of Section 1401(4)
I. Systems Newly Defined as Public Water Systems
A. Statutory Language
As described above, effective August 6, 1998, Section 1401(4)(A) of
the SDWA <SUP>2</SUP> expands the definition of a PWS to read as
follows:
\2\ All references in this Guidance to section 1401 refer to
section 1401 of the SDWA.
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The term public water system means a system for the provision to
the public of water for human consumption through pipes or other
constructed conveyances, if such system has at least fifteen service
connections or regularly serves at least twenty-five individuals.
Such term includes
(i) any collection, treatment, storage and distribution
facilities under control of the operator of such system and used
primarily in connection with such system, and
(ii) any collection or pretreatment storage facilities not under
such control which are used primarily in connection with such
system.
This revised definition broadens the means for delivering water
that will qualify a water supplier <SUP>3</SUP> as being a public water
system from pipes to ``pipes or other constructed conveyances.'' Thus,
as of August 6, 1998, in accordance with this provision and EPA's
regulations, water systems providing water for human consumption
through constructed conveyances to at least fifteen service connections
or an average of twenty-five individuals daily at least 60 days per
year will be defined as public water systems subject to SDWA
regulation. See 40 CFR 141.2. EPA has interpreted the term human
consumption to include drinking, bathing, showering, cooking,
dishwashing, and maintaining oral hygiene, and this interpretation has
been upheld by the courts. See United States v. Midway Heights County
Water District, 695 F. Supp. 1072, 1074 (E.D. Cal. 1988) (``Midway
Heights'').
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\3\ As used in this Guidance, and as indicated in section
1401(4)(C), the term water supplier broadly refers to any water
provider that may be subject to regulation as a public water system
under the SDWA. This term should not be confused with supplier of
water, which is defined in the SDWA as ``any person who owns or
operates a public water system''. See SDWA Section 1401(7).
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In order to obtain or maintain primacy, States must adopt this new
definition of public water system or a more stringent definition and
submit this portion of their State primacy programs for approval to EPA
in accordance with Section 1413 of the SDWA and 40 CFR Part 142.
B. Interpretation of ``Constructed Conveyance''
As of August 6, 1998, systems that deliver water for human
consumption through constructed conveyances other than pipes to the
requisite number of connections and/or individuals will be defined as
PWSs subject to SDWA regulation. The term constructed conveyance is not
limited by the SDWA as to the size of the conveyance or the
[[Page 25742]]
character of the delivery system. The term refers broadly to any
manmade conduit such as ditches, culverts, waterways, flumes, mine
drains or canals. The term constructed conveyance does not include
water that is delivered by bottle, other package unit, vending machine
or cooler, nor does it include water that is trucked or delivered by a
similar vehicle.<SUP>4</SUP>
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\4\ One or more of these water delivery methods may under
certain circumstances be considered public water systems under
existing interpretations of other parts of the definition of a
public water system.
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Water bodies or waterways that occur naturally but which are
altered by humans may, in some cases, be constructed conveyances.
Whether a particular water body or waterway is a constructed conveyance
for purposes of section 1401(4) depends on the totality of facts that
characterize whether the water body or waterway is essentially a
natural water body or waterway, or whether it is essentially a manmade
conduit. Specifically, the primacy agency should first decide whether a
water body is manmade, or ``constructed,'' by determining whether or
not it exists in its current configuration substantially from human
modifications such as mining, dredging, channelization, bed or bank
modification, maintenance, etc. Second, the primacy agency should
determine whether the water body is a conduit, or ``conveyance,'' by
examining who owns or controls the water and the reason why water is
present: Whether it is present perennially through natural
precipitation and runoff or discharge of natural springs, or whether
its flow is present primarily by human means and in order to convey the
water to users as part of a network under the management of the water
supplier. If both of the above-described factors are present, at least
as to particular users whose status as ``connections'' is in question,
the water body is a constructed conveyance. Primacy agencies should
also use the totality of circumstances to determine whether natural
waterway portions of a water delivery system composed in part of
constructed conveyances are part of a public water system.
While irrigation-related entities and their canals are likely to be
the most common systems newly defined as PWSs under the expanded
definition in section 1401(4), mining and other industrial entities
that convey water may also fit within the definition if their water is
used for human consumption.
C. Identification of Public Water Systems Under the Revised Definition
Primacy agencies should examine their areas of jurisdiction to
determine if there are any water suppliers that meet the new public
water system definition. Whether a water system is providing water
through constructed conveyances to at least fifteen service connections
or an average of twenty-five individuals daily at least 60 days per
year should be determined by whether the water supplier knows or should
know that the connections exist or that the individuals are using water
from the water system for human consumption. In Midway Heights, the
court held that the county water district either knew or should have
known to a substantial certainty that individuals were using the
district's water for human consumption based on the locations and
arrangements of the pipes and plumbing, the fact that a pipe ran from
the system into a number of homes, and a specific provision in an
agreement between the water district and the users instructing the
users to make the water potable before using it for human consumption.
The court further found that a ``waiver'' agreement between the water
district and the users that purported to limit the use of the
district's water to irrigation was ineffective to remove the water
system's liability under the SDWA. Likewise, EPA does not consider a
waiver signed by water users stating that they must not use or are not
using water for human consumption to preclude the water supplier from
being considered a PWS when the system knows or should know that it is
supplying water for human consumption to at least fifteen connections
or an average of twenty-five regularly served individuals.
In order for water suppliers that may be newly defined as public
water systems under the revised definition to determine whether they
will, in fact, be defined as PWSs as of August 6, 1998, the suppliers
should undertake before this date any necessary actions (e.g., a survey
of any water users that might be using the water for human consumption)
to ascertain their users' water use patterns. While water suppliers
should take the initiative to assess and characterize their water use
situations to the primacy agency as a core element of such surveys,
such suppliers can also offer their users the opportunity to describe
their water use situations to the supplier. Suppliers should determine
from users that might be using their water for human consumption
whether the water they supply is currently used for any of the human
consumptive uses outlined above, i.e., drinking, bathing, showering,
cooking, dishwashing, or maintaining oral hygiene, and, if so, which
such uses. Suppliers should also document whether additional or
alternative sources of water are used for human consumption, e.g.,
whether a private well, bottled water, or hauled water is used, and for
what purposes these additional sources of water are used. Suppliers
should determine and document whether the users are connected to a
central treatment plant or use a point-of-entry device. Some suppliers
have already performed surveys to gather information regarding their
users' water use patterns.
In addition to undertaking a survey or other action to document
water use patterns, water suppliers will need to consider any other
available information that indicates that their users are in fact using
the water for human consumption. As stated above, where a water
supplier knows or should know that the requisite number of connections
and/or individuals are using its water for human consumption, the
primacy State or EPA will consider the system to be a PWS. The results
of any survey and other available information should provide a basis
for ascertaining whether a water supplier has at least fifteen service
connections or regularly serves at least twenty-five individuals and
would therefore be considered a PWS. EPA or the primacy State will
expect documented evidence of the suppliers' best efforts to ascertain
these water uses. A supplier's failure to make such an effort to gather
any necessary information and provide sufficient documentation will not
excuse the supplier from liability under the SDWA.
Primacy agencies should determine what form of records they will
need from water suppliers to implement this provision. In addition to
surveys, primacy agencies may want to consider requiring suppliers to
submit annual affidavits documenting such information as the number of
connections and users to whom they serve water, the uses of that water,
and whether alternative water is supplied. Primacy agencies should also
determine how often they will need updated records and how suppliers
should maintain these records (e.g., schedule, location, availability).
Pursuant to its regular oversight responsibilities, EPA can review
State determinations of whether a system is a PWS. If EPA has serious
concerns with the result of a State's determination, it will discuss
these matters with the State regarding a potential reconsideration of
the determination. In the event EPA cannot resolve the matter with the
State,
[[Page 25743]]
SDWA Section 1414 continues to authorize EPA to bring an enforcement
action against a system to support the position that the system is a
PWS.
If a water supplier provides water for human consumption through
constructed conveyances other than pipes to at least twenty-five
individuals or fifteen connections at any time on or after August 6,
1998, the supplier will be considered a PWS. Such a supplier may avoid
regulation as a PWS only if it qualifies for the exclusions provided in
section 1401(4)(B)(i) and thereby reduces its ``connections'' to fewer
than fifteen connections regularly serving fewer than twenty-five
individuals. Information gathered in suppliers' surveys will aid the
suppliers in deciding whether they may qualify for or should apply to
the primacy agency for these exclusions, and in documenting their case
for any such exclusions. The exclusions are described in detail in
Section II below.
II. The Exclusions in Section 1401(4)(B)(i)
A. Statutory Language
Section 1401(4)(B)(i) provides limited exclusions to the
``connection'' component of the PWS definition to systems that deliver
water through constructed conveyances other than pipes. These
exclusions are not available to piped water systems, with the exception
of certain piped irrigation districts described in section
1401(4)(B)(ii) and discussed in section III, below.
Specifically, Section 1401(4)(B)(i) provides that a connection to a
system that delivers water through constructed conveyances other than
pipes is excluded from consideration as a ``connection'' for purposes
of section 1401(4)(A) under three circumstances:
(1) Where the water is used exclusively for purposes other than
residential uses (consisting of drinking, bathing, and cooking, or
other similar uses);
(2) Where EPA or the State (where the State has primary enforcement
responsibility for PWSs) determines that alternative water to achieve
the equivalent level of public health protection provided by the
applicable national primary drinking water regulations is provided for
drinking and cooking;
(3) Where EPA or the State (where the State has primary enforcement
responsibility for PWSs) determines that the water provided for
drinking, cooking, and bathing is treated (centrally or by point of
entry) by the provider, a pass-through entity, or the user to achieve
the equivalent level of protection provided by the applicable national
primary drinking water regulations.
If the application of one or more of these exclusions reduces the
``connections'' of a system providing water for human consumption
(through constructed conveyances other than pipes) to fewer than
fifteen service connections that serve fewer than twenty-five
individuals, the supplier's water system is not a PWS regulated under
the SDWA.<SUP>5</SUP>
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\5\ The three exclusions above do not otherwise affect the
manner in which primacy agencies have defined a connection for the
purposes of the SDWA.
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However, if the supplier's remaining connections number fifteen or
more, or if its remaining connections (even if they number fewer than
fifteen) regularly serve at least twenty-five individuals, then the
system is a PWS, although the excluded connections are not considered
part of the PWS for as long as the exclusions apply and the system
complies with any conditions governing their applicability.
B. Application of Section 1401(4)(B)(i)
1. The ``Other Than Residential Uses'' Exclusion
Whether the first of the three exclusions in section 1401(4)(B)(i)
applies depends on the facts surrounding a user's use of the water. If
water provided by a water supplier to a particular connection is used
exclusively for purposes other than residential uses, consisting of
drinking, bathing, and cooking, or similar uses, the exclusion in
section 1401(4)(B)(i)(I) applies automatically to that connection
without a formal determination by the primacy agency as to its
applicability. However, the primacy agency may still request that the
supplier verify the nonresidential use of the water through a survey or
other mechanism that evidences whether the supplier may be subject to
regulation as a PWS. An example of where this exclusion would apply is
when a user obtains all water for drinking, bathing, cooking, and
similar uses from a private well, while the supplier provides the user
with water for toilet flushing and/or outside irrigation.
2. The Alternative Water and Treatment Exclusions
The next two exclusions are not ``automatic;'' they apply only
after the primacy agency has made the factual determination that the
supplier complies with the exclusion criteria. If the primacy agency
provides the supplier with a written determination that the exclusions
in sections 1401(4)(B)(i)(II) and (III) apply, then an eligible water
supplier can reasonably rely on those exclusions, as long as they
continue to be maintained in practice, to avoid classification as a PWS
subject to the SDWA or to continue to provide users of ``excluded
connections'' with water for human consumption that does not comply
with the SDWA requirements applicable to PWSs. Suppliers seeking to
exclude connections under section 1401(4)(B)(i)(II) and/or (III) are
responsible for ensuring that the primacy agency has sufficient
information and documentation to demonstrate compliance with the
exclusion criteria prior to the primacy agency's making a
determination.
The Alternative Water Exclusion. A water supplier seeking to
exclude a particular connection pursuant to section 1401(4)(B)(i)(II)
must demonstrate to the primacy agency that it is providing users at
that connection with water for drinking and cooking from another source
such as bottled water or hauled water. To qualify for this exclusion
the supplier must provide the water to the users, at a reasonable
location, not merely make it available. Whether the alternative water
provided by the supplier is being provided at a reasonable location,
such as on the user's doorstep or at the property line, will be
determined by the primacy agency on a case-by-case basis. The supplier
must demonstrate that it is actually providing to the users a minimum
amount of water adequate to meet the users' drinking and cooking needs.
The supplier need not provide alternative water to meet the users'
bathing needs. The exclusion does not apply to a connection where the
users, not the supplier, provide alternative water for drinking and
cooking. In such cases, the supplier cannot ensure that the alternative
water is reliably providing a level of public health protection
equivalent to that provided by the applicable national primary drinking
water regulations (NPDWRs).<SUP>6</SUP>
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\6\ Applicable national primary drinking water regulations means the NPDWRs that would apply to the water supplier if all its
connections excluded pursuant to the alternative water and treatment
exclusions were counted as connections.
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The primacy agency must also make the factual determination that
the alternative water provided for drinking and cooking actually
achieves the equivalent level of public health protection provided by
applicable NPDWRs. The primacy agency will make this determination
based on its own criteria regarding which alternative water sources,
and which associated
[[Page 25744]]
documentation, operational, monitoring, reporting or other
requirements, achieve the equivalent level of public health protection
provided by applicable NPDWRs. The primacy agency should not
necessarily assume that all varieties of bottled or hauled water will
achieve the requisite level of public health protection absent
information about the source and quality of the water. Where existing
State regulations governing bottled and/or hauled water provide the
equivalent level of public health protection provided by applicable
NPDWRs, an alternative water purveyor's compliance with such
regulations would provide adequate assurance that the alternative water
actually achieves the requisite level of public health protection.
The water supplier may charge the users for the reasonable cost of
the water supplied. The water supplier may also contract with a third
party to deliver the water at a reasonable cost to the user, but in
such case the supplier remains responsible for ensuring that the
alternative water is provided to the users.
The Treatment Exclusion. A water supplier seeking to exclude a
particular connection pursuant to section 1401(4)(B)(i)(III) must
demonstrate to the primacy agency that the water that it supplies for
drinking, cooking and bathing at that connection is centrally treated
<SUP>7</SUP> or treated at the point of entry by the provider, a pass-
through entity, or the user. A pass-through entity is an entity other
than a water supplier referred to in section 1401(4)(B) or its users
that has been contractually engaged by the water supplier or the user
to provide the treatment described in section 1401(4)(B)(i)(III). The
supplier must submit information and documentation to the primacy
agency demonstrating that central treatment or a point-of-entry
treatment device is actually in use and treating all water used for
drinking, cooking and bathing at that connection.
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\7\ However, a system that centrally treats water for 15 or more
connections or 25 or more individuals is itself a public water
system and subject to the NPDWRs.
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The primacy agency must also make the factual determination that
the treated water actually achieves the equivalent level of public
health protection provided by the applicable NPDWRs.<SUP>8</SUP> The
primacy agency will make this determination based on its own criteria,
which can include appropriate, independent third party (such as the
National Sanitation Foundation) certification or performance
verification, regarding which types of treatment devices may be used,
and which associated operational, monitoring, reporting or other
requirements are necessary, to ensure that the provided water actually
achieves the equivalent level of public health protection provided by
applicable NPDWRs. This third party verification generally describes a
range of contamination levels in the raw (untreated) water that the
treatment device can effectively address. Where local variability of
source water conditions indicates a need--as where the raw water is
highly contaminated--primacy agencies could choose to require more
site-specific pilot testing. National third party performance
verification will still be helpful in such cases as a guide to the
water quality parameters (levels of contamination) that will (or will
not) present problems for technology performance with the type of
contaminant and treatment process involved. EPA's listing of point-of-
entry compliance technologies may also be helpful, as the listings may
include a statement of certain limitations on the use of a specific
technology for compliance that can focus primacy agencies' attention on
key performance parameters.
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\8\ See footnote 5.
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The words ``equivalent level of public health protection'' are
meant to distinguish the situation of providers covered by this section
from the situation of public water systems which must comply with all
relevant aspects of the applicable regulations, including sampling and
testing requirements and sometimes details of treatment. For example, a
point-of-entry treatment device for filtration and disinfection might
not comply with all requirements of relevant drinking water rules for
monitoring, extent of surveillance of the disinfection process, and so
forth. But, it would meet the ``equivalent level of public health
protection'' requirement of this section if the quality of the water it
produces is similar to that from central filtration and disinfection.
Thus, this requirement is a performance standard providing that the
quality of the water that affected residential users get should be
similar to that from central treatment.
As stated in section 1401(4)(B)(i)(III), treatment may be provided
by the water supplier seeking to qualify for the exclusion, by a pass-
through entity, or by the user. However, because the exclusion cannot
be granted unless the treatment actually provides an equivalent level
of public health protection, as a practical matter the supplier will
need to be responsible for ensuring that this is the case to enable the
primacy agency to make the necessary determination.
III. The Exclusion in Section 1401(4)(B)(ii) for Certain Piped
Irrigation Districts
All piped water systems providing water for human consumption to at
least fifteen service connections or twenty-five regularly served
individuals were defined as PWSs subject to SDWA regulation prior to
the 1996 amendments. The amendments, however, provide a new exclusion
for a specified group of these PWSs. Section 1401(4)(B)(ii) provides:
An irrigation district in existence prior to May 18, 1994, that
provides primarily agricultural service through a piped water system
with only incidental residential or similar use shall not be considered
to be a public water system if the system or the residential or similar
users of the system comply with subclause (II) or (III) of clause (i).
The exclusion provisions for qualifying piped irrigation districts
were effective immediately upon passage of the 1996 amendments, in
contrast with the expanded definition of public water system in section
1401(4) as applied to constructed conveyance systems, which becomes
effective on August 6, 1998.
An irrigation district referred to in section 1401(4)(B)(ii) that
would otherwise be defined as a PWS may avoid regulation as a PWS only
if the primacy agency determines that all connections to the district
that use the district's water for human consumption comply with
subclause (II) or (III) of section 1401(4)(B)(i). In contrast to
systems providing water through constructed conveyances, these
districts cannot avoid regulation as a PWS by simply ``reducing
connections'' to fewer than fifteen connections serving fewer than
twenty-five individuals by application of the exclusions in subclauses
(II) and (III).
Only those irrigation districts that existed prior to May 18, 1994,
and which provide primarily agricultural service through piped water
systems with only incidental residential or similar use, are eligible
to apply for these exclusions. The agricultural exclusion is available
for commercial agriculture only. Incidental residential or similar use
refers to human consumptive uses that are closely and functionally
related to the primary agricultural service provided by the irrigation
district. For example, the use of water for human consumption by the
residents of a farmhouse working on agricultural property, from a
connection used primarily for irrigation of that property, is
incidental to the primarily
[[Page 25745]]
agricultural use of the water. Similarly, human consumptive use by
farmworkers residing on agricultural property is incidental to the
primary agricultural service provided to that property by the district.
In contrast, the use of water for human consumption from a connection
to an irrigation district's pipe by a cluster of homes in a subdivision
is not ``incidental'' to the district's primary agricultural service.
If the character of the irrigation district's service changes so that
the district no longer provides primarily commercial agricultural
service with only incidental residential or similar use, the district
would no longer qualify for this exclusion.
Questions and Answers
Q1: How can primacy agencies identify water suppliers that may be
newly defined as public water systems under the revised definition of
public water system in section 1401(4)?
A1: Primacy agencies will likely benefit by tapping into the
knowledge base of their inspectors, following up on citizen water
quality complaints in irrigation and mining areas and developing
inventories of irrigation and other constructed conveyance water
suppliers. State agriculture departments, mining regulatory agencies
and water resource departments can help develop these inventories. EPA
recommends that the primacy agency send a letter to possible new PWSs
informing them of the requirements of the 1996 amendments, the systems'
potential SDWA responsibilities, and the systems' responsibility to
determine whether and how many of their users are using their water for
human consumption. EPA further recommends that primacy agencies suggest
that the suppliers undertake any necessary actions (e.g., a survey of
any water users that might be using the water for human consumption) to
ascertain their users' water use patterns. Primacy agencies may wish to
request that water suppliers providing water through constructed
conveyances other than pipes provide them with annual, affirmative
documentation such as affidavits or other certifications identifying
the connections and users to whom they serve water, and identifying the
connections and users using their water for human consumption and
residential uses. This would be a means for primacy agencies to verify
suppliers' documentation of the number of connections using their water
for human consumption.
Q2: Because most water suppliers cannot inspect the interiors of
their users' premises, on what evidence should the suppliers base their
conclusions about their users' water use?
A2: A survey of users by the supplier that includes affirmative
documentation as to the types of uses made of the water would be
sufficient in most cases. The supplier should look to evidence that may
be available such as the likely availability of potable ground water in
the area, empty water bottles awaiting pick-up, observations by company
personnel and patterns of water use at that connection that indicate
whether human consumption of the water provided by the supplier is
probable.
Q3: Some water suppliers have warned their users that their water
is nonpotable or is not for human consumption without treatment. Some
have offered the water for sale only on the condition that it will not
be used for human consumption. Other suppliers have required their
users to sign statements that the water will not be used for human
consumption or that the supplier is not liable (and the user assumes
the risks) if the water is used domestically. If, nevertheless, a user
uses water for human consumption in the face of these or similar
conditions, must the water supplier count the user as a connection for
the purposes of section 1401(4)?
A3: Yes. The controlling element here is whether the water supplier
is delivering water that the supplier knows or should know is being
used for human consumption.
Q4: There are several kinds of nonpaying water users. Some water
suppliers are plagued by ``midnight'' or transient water thieves who
take water for a very short period of time. Their identities are
usually unknown. Other nonpaying users are found to have taken water
surreptitiously for a longer period but still without the permission of
the supplier. A third group consists of nonpaying users who have taken
water openly for a considerable length of time with the knowledge but
without the consent of the supplier. Some users have continued taking
water directly from canals or ditches with buckets and other containers
after their pump/siphon intakes were eliminated by the supplier. Which
of these users are counted as ``connections'' within the meaning of
section 1401(4)?
A4: The primacy agency should look at the totality of the
relationship between the water supplier and the nonpaying user to
determine if the relationship is of sufficient strength to constitute a
``connection'' or ``individual served'' by the system. The supplier's
knowledge of water withdrawals and the permanency of the withdrawals is
more important in this relationship than the payment of fees. The
supplier is expected to monitor its operation as a regular part of its
business and to be aware of water withdrawals. If the water supplier
knows or reasonably should know of the taking of the water, there is
probably a connection within the meaning of section 1401(4).
Q5: Where a water supplier provides water for human consumption
through pipes or other constructed conveyances, does the geographic
isolation of that water supplier's users affect whether such users are
counted as connections or individuals served by the supplier?
A5: No. All water users to whom the water supplier provides water
for human consumption are counted as connections or individuals served
by the supplier regardless of their geographic isolation from other
users, unless such connections are otherwise excluded pursuant to
section 1401(4)(B).
Q6: Are the exclusions in section 1401(4)(B)(i) available to a
water supplier that operates a system that consists primarily of non-
piped constructed conveyances, but which includes some limited
``piping'' such as siphons to pass under roads or washes, short tunnels
through hills, etc.?
A6: Yes, assuming the exclusion criteria apply. Only those
suppliers that convey water by means other than pipes, and which are
newly defined as public water systems under the expanded definition in
section 1401(4)(A), may use the exclusions available under section
1401(4)(B)(i) to avoid regulation as a public water system. Suppliers
whose piping consists only of the limited piping described above are
not considered to convey water by pipes. A primacy agency should not
make a determination that a supplier is a piped water system, either as
to specific connections or entirely, if it would not have been able to
do so under SDWA prior to the changes enacted to section 1401(4). It
should be noted that section 1401(4)(B)(ii) provides a separate
exclusion to a specified group of piped irrigation districts, as
discussed in Section III above.
Q7: If a water supplier delivers water for human consumption
through a constructed conveyance other than a pipe and reduces its
number of countable connections through the operation of 1401(4)(B)(i)
to 15 connections using water for human consumption does it have to
supply SDWA-complying water only to these 15 connections or to all of
its connections?
[[Page 25746]]
A7: The water supplier is under an obligation to supply SDWA-
complying water only to the 15 connections.
Q8: Is an irrigation district in existence prior to May 18, 1994,
that provides primarily agricultural service through a piped water
system with only incidental residential or similar use considered to be
a public water system if just one connection fails to comply with
subclause (II) or (III) of clause (i)?
A8: Yes. All connections to this kind of public water system must
comply with subclause (II) or (III) of clause (i) before the supplier
will not be considered a public water system.
Q9: In the example immediately above, is the irrigation district
under an obligation to comply fully with SDWA with regard to just the
one connection described or to all of its connections?
A9: The water supplier must comply fully with SDWA with regard to
all of the connections to the public water system using water for human
consumption.
Q10: What financial options are available to water suppliers that
will be newly defined as PWSs as of August 6, 1998 under the expanded
definition of PWS in section 1401(4) and to suppliers that wish to make
use of the exclusions in section 1401(4)(B)?
A10: There are various financial options available to those water
suppliers. First, public water systems are eligible for Drinking Water
State Revolving Fund loans--with subsidies available to disadvantaged
communities. Even those water suppliers that wish to exclude
connections through use of point-of-entry treatment or central
treatment pursuant to section 1401(4)(B)(i)(III) are eligible for these
loans to provide such treatment. In addition, some communities known as
``colonias'' may be eligible for assistance through federal grants to
border States intended to provide assistance to such communities to
facilitate compliance with SDWA requirements, although such grant
funding has not previously been appropriated for this purpose. Finally,
water suppliers providing alternative treatment have all the financial
options regarding amortization and charging costs to users they would
have for any other capital investment.
Disclaimer
This document provides guidance to EPA Regions and States
exercising primary enforcement responsibility under the SDWA concerning
how EPA interprets the amended definition of public water system under
the SDWA. It also provides guidance to the public and the regulated
community on how EPA intends to exercise its discretion in implementing
the statute and regulations defining public water system. The guidance
is designed to implement national policy on these issues. The document
does not, however, substitute for the SDWA or EPA's regulations, nor is
it a regulation itself. Thus, it cannot impose legally-binding
requirements on EPA, States, or the regulated community, and may not
apply to a particular situation based upon the circumstances. EPA and
State decisionmakers retain the discretion to adopt approaches that
differ from this guidance on a case-by-case basis where appropriate.
EPA may change this guidance in the future.
(Authority: 42 U.S.C. 300f(4))
[FR Doc. 98-12307 Filed 5-7-98; 8:45 am]
BILLING CODE 6560-50-P
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