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RESPONSE TO COMMENTS
ON THE DEFINITION OF A PUBLIC WATER SYSTEM IN SDWA SECTION 1401(4) AS
AMENDED BY THE 1996 SDWA AMENDMENTS
JULY 31, 1998
On May 8, 1998, the U.S. Environmental Protection Agency (EPA) published
a notice in the Federal Register (63 Fed. Reg. 25739-25746) 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on the draft guidance "Definition of a Public Water System in SDWA Section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 Federal Register
notice asked that comments be submitted on or before June 22, 1998, to
Jon Merkle, Drinking Water Office--(WTR-6), EPA Regon 9, 75 Hawthorne
Street, San Francisco, California 94105 or by E-mail to merkle.jon@epamail.epa.gov.
By June 26, 1998, comments were received from the following entities:
1. Oklahoma Department of Environmental Quality (email) Rec. 6/08/98
2. Wellton-Mohawk Irr. and Drainage Dist. (postal) Rec. 6/15/98
3. Maryland Department of the Environment (email via Rick Rogers R-3)
Rec. 6/16/98
4. Georgia Department of Natural Resources (email) Rec. 6/19/98
5. Association of California Water Agencies (email+UPS) Rec. 6/19/98
6. Placer County Water Agency (fax & postal) Rec. 6/19/98
7. Central Arizona Water Conservation District (CAP) (fax & postal)
Rec. 6/19/98
8. Idaho Water Users Association (email) Rec. 6/22/98
9. Idaho Division of Environmental Quality (postal) Rec. 6/22/98
10. Imperial Irrigation District (Emergency Petition) (messenger) Rec.
6/22/98
11. Salt River Project (email & postal) Rec. 6/22/98
12. American Water Works Association (FedEx) Rec. 6/22/98
13. Irrigation and Electrical Districts' Ass. of Arizona (fax & postal)
Rec. 6/22/98
14. Wheeler Ridge-Maricopa Water Storage District (fax & postal) Rec.
6/22/98
15. Northern Colorado Water Conservancy District (postal) Rec. 6/22/98
16. Oregon Water Resources Congress (email & postal) Rec. 6/22/98
17. Imperial Irrigation District (Comments) (messenger) Rec. 6/23/98
18. Oroville-Tonasket Irrigation District (postal) Rec. 6/26/98
This document is a record of responses made by EPA to these comments.
Changes made to the draft guidance were incorporated into the text of
the final guidance on "Definition of a Public Water System in SDWA Section
1401(4) as Amended by the 1996 SDWA Amendments."
A late comment was received from the U.S. Department of the Interior,
Bureau of Reclamation, on July 29, 1998. The comment was not received
in time to be incorporated in this Response to Comments document or to
have affected the formulation of the final guidance. However, most of
the issues raised by this comment were also raised in other comments on
the draft guidance, and, therefore, considered by EPA and addressed, as
appropriate, in this Response to Comments document and the final guidance.
1. Comment: The bathing component of EPA's interpretation
of the term "human consumption" could be interpreted to include wading
in canals or getting wet while doing canal maintenance or engaging in
similar activities.
Several commenters suggested that EPA interpreted the "bathing" portion
of the Midway Heights definition of human consumption (drinking, bathing,
showering, cooking, dishwashing and maintaining oral hygiene) to include
swimming in, wading in or otherwise having incidental contact with canal
water. For purposes of interpreting Section 1401(4) of the Act, EPA interprets
the term "bathing" to mean the use of water for personal hygiene purposes
in a home, business setting, school, etc. EPA does not interpret the term
"bathing" in this context to refer to situations such as (1) swimming
in an open canal or (2) incidental, casual contact with water from an
open canal in connection with outdoor activities such as agricultural
work, canal maintenance, or lawn and garden care. The guidance text has
been changed to reflect this interpretation.
2. Comment: Must the primacy agency adopt the guidance's
definition of "constructed conveyance"?
One commenter asked whether EPA could require a State primacy agency to
adopt the new definition of "constructed conveyance" as defined in the
guidance. EPA's regulations governing State primacy require State primacy
agencies to adopt the expanded definition of "public water system" contained
in SDWA Section 1401 (or a more stringent version), but do not require
specifically that State primacy agencies adopt into regulation EPA's interpretations
of terms, such as "constructed conveyance," that are discussed in the
guidance. (See 40 CFR §§ 142.10(b)(6) and 142.12(a)). The guidance
was modified slightly to clarify this point.
3. Comment: The guidance's definition of "constructed
conveyance" is vague and confusing.
EPA has modified the guidance's definition of "constructed conveyance"
to set forth more clearly the factors that the primacy agency should use
to determine if a particular water body is a constructed conveyance.
4. Comment: The "knows or should know" standard
imposed on the supplier by the guidance exceeds the intent of Congress
and is unworkable because it requires the supplier to access information
that may be unreasonable or impossible for the supplier to attain.
Several industry commenters disagreed with EPA's position in the draft
guidance that a water supplier will be considered a PWS if the supplier
knows or should know that it is providing water for human consumption
to the requisite number of connections or individuals. Related comments
pertained to the issue of water theft and the draft guidance's discussion
of whether individuals using water without the permission of supplier
could be considered "connections."
The "knows or should know" standard appears in the guidance in two different
contexts: (1) whether the supplier is "providing" water to a connection,
and (2) whether the water provided is being used for "human consumption."
EPA believes that its application of the "knows or should know" standard
in the "providing water" context is consistent with the text of the SDWA
and the intent of Congress. EPA has modified the draft guidance, however,
to provide a more detailed explanation of how the "know or should know"
standard should be used to ascertain whether a supplier is "providing"
water, particularly where there is not an explicit agreement for water
use between a supplier and a user. EPA also believes that its application
of the "knows or should know" standard in the "human consumption" context
is consistent with the Midway Heights court's application of this
standard. EPA has modified the draft guidance to provide more detail on
how the standard will be applied, as described more fully below in the
response to Comment 5.
5. Comment: The draft guidance's recommendation
that water suppliers conduct surveys of their users, or take other investigative
steps, to ascertain whether users are using water provided by the supplier
for human consumption places an excessive burden on water suppliers.
Each water supplier is responsible for examining whether the new definition
of PWS under the amended SDWA is applicable to that supplier's water system,
just as a supplier is responsible for determining the applicability of
and complying with any other law.
In order to find out whether they may be regulated under the new definition,
suppliers should undertake reasonable efforts within their authority to
ascertain their users' water use patterns. Reasonable efforts do not entail
Herculean investigations or investigations that violate the law. Surveys
of water users would in most cases constitute a reasonable effort to identify
these water use patterns.
A supplier's failure to make a reasonable effort, such as conducting surveys,
to gather any necessary information will not excuse the supplier from
liability under the SDWA. On the other hand, water suppliers that do undertake
reasonable efforts to identify which of their users are using their water
for human consumption will have identified all users for human consumption
that they "should know" to exist, in accordance with the Midway Heights
standard, and will have a basis for evaluating whether the new PWS definition
applies to their operation. In addition, information gathered in suppliers'
surveys will aid the suppliers in deciding whether they may qualify for
or should apply to the primacy agency for the exclusions in Section 1401(4)(B),
and in documenting their case for any such exclusions.
Primacy agencies should determine what form of information they will need
from water suppliers to implement the new definition of PWS, which may
include surveys.
EPA has modified the draft guidance to clarify that suppliers should undertake
reasonable efforts to determine their users' water use patterns. EPA has
also clarified in the guidance that a survey of water users would constitute
a reasonable effort in most cases, but should not be considered conclusive
where other available evidence indicates that human consumption of water
the supplier provides is probable.
6. Comment: EPA's discussion of waivers unnecessarily
limits their proper roles in determining liability under the SDWA.
EPA believes that waivers are ineffective to protect a supplier against
SDWA liability where the supplier knows or should know that the water
it supplies to a user is being used for human consumption. However, that
does not mean that waivers or warnings to customers have no evidentiary
role in an enforcement proceeding; rather, it means just that they are
not determinative of liability. A minor change was made to Answer 3 of
the draft guidance to clarify EPA's position on this issue.
One commenter seemed to confuse waivers against human consumption with
contractual agreements between a supplier and a user, or between a supplier
and a pass-through entity, regarding the user's or pass-through entity's
treatment of water provided by the supplier. A supplier that wishes to
make use of the alternative treatment exclusion in Section 1401(4)(B)(i)(III)
should work with the primacy agency to ensure that any contractual arrangement
it has with the user or a pass-through entity to treat the water is adequate
and to determine what additional criteria must be met to ensure that the
treatment will provide continued attainment of the required level of health
protection. No changes were made to the guidance in response to this comment.
7. Comment: The "other than residential use" exclusion
is automatic, and the primacy agency does not have authority to require
a supplier to provide information to the primacy agency when the supplier
is not within the jurisdiction of the SDWA.
While the "other than residential use" provision is referred to in this
guidance document as one of three exclusions, it does not contain the
primacy agency determination process that the other exclusions contain.
This provision simply clarifies that where water being provided to a certain
connection is not being used "for human consumption," that connection
is not counted as a connection for purposes of the definition of a PWS
in Section 1401(4). Minor changes were made to the draft guidance to clarify
this point.
Primacy agencies are required to maintain a current inventory of PWSs,
to apply drinking water regulations to all PWSs within their jurisdictions,
and to have enforcement authority adequate to compel compliance with applicable
drinking water regulations. Primacy agencies should determine what types
of information they need and are authorized to obtain from water suppliers
to implement the new definition of PWS and to identify entities newly
regulated under the SDWA. Suppliers that cooperate with the primacy agencies
in this regard will have assurance about their PWS status, whereas those
that do not may risk enforcement action.
8. Comment: The exclusions in Sections 1401(4)(B)(i)(II)
and (III) should apply without any determination by the primacy agency.
EPA disagrees. The statutory language makes clear that suppliers of water
for human consumption through constructed conveyances to the requisite
number of connections or users are public water systems unless the primacy
agency determines that the suppliers qualify for the alternative water
and/or treatment exclusions. The primacy agency must determine that the
water is being provided or that treatment is in place, and that the water
or treatment actually achieves the equivalent level of public health protection
provided by the applicable national primary drinking water regulations,
before exclusions from consideration apply to such connections. Specifically,
subclauses (II) and (III) of Section 1401(4)(B)(i) provide that a connection
shall not be considered a connection "if the [primacy agency] determines
. . .".
The legislative history also supports a strict interpretation of the "determination"
language. The House Report (No. 104-632) states:
In order to qualify for either of the two latter exclusions, the State
(or the Administrator in the case of a State without primacy) must make
the factual determination that the alternative water or treated water
used for residential or similar uses actually achieves the equivalent
level of public health protection provided by the applicable national
primary drinking water regulation. This determination is distinct from
the question of who may bear the responsibility for actually providing
treatment.
Further, the primacy agencies have the expertise to determine whether alternative
water or treatment achieves the equivalent level of protection provided
by the applicable national primary drinking water regulations. Non-PWS water
suppliers and users ordinarily are neither trained nor experienced in making
such determinations. Not requiring primacy agencies to make such determinations
prior to allowing systems to rely on these exclusions could result in substandard
alternative water or treatment being provided to users. Having the primacy
agency make an up-front determination allows regulatory requirements to
be relaxed pursuant to the statute while ensuring the protection of public
health.
No changes were made to the guidance in response to this comment.
9. Comment: Water suppliers should not be required
to "provide" alternative water for residential or similar uses for drinking
and cooking to achieve the equivalent level of public health protection
provided by the applicable national primary drinking water regulations
in order to rely on the exclusion in Section 1401(4)(B)(i)(II). They should
be able to rely on users to supply their own alternative water.
EPA disagrees. The statutory language makes clear that the supplier must
provide the alternative water. Subclause (II) of Section 1401(4)(B)(i)
simply uses the phrase "is provided for", without specifying who must
provide the alternative water, in contrast with subclause (III), which
specifies that entities other than the supplier may treat the water in
accordance with that exclusion. This contrast makes clear that the water
supplier must provide the alternative water under subclause (II).
In addition, the legislative history strongly supports this interpretation.
House Report No. 104-632 states:
The second exclusion applies when water is provided by the system
for residential or similar uses from another source such as bottled water
or trucked water (section 1401(4)(B)(i)(II). To qualify for this exclusion,
the alternative source of water for these uses must be provided (not
merely be available). By requiring the alternative supply of water
to be "provided," the Committee does not intend the water to be provided
for free of charge. As with a public water system, the water system
may charge users for the reasonable costs of the water supplied. (Emphases
added.)
The congressional intent to allow users to provide treatment, but not alternative
water, under Section 1401(4)(B) is further supported by the subsequent paragraph
of the House Report, which pertains to the "treatment" exclusion in subclause
(III). There the Report acknowledges that "[a]s a general principle, the
Safe Drinking Water Act does not allow a public water system to place the
burden of compliance on its customer. However, the Committee recognizes
that in several situations it may be appropriate to allow customers to assume
this obligation." The Report then describes the reasoning behind allowing
users to provide treatment under the exclusion in subclause
(III), but provides no indication that the statutory language is intended
to allow users to provide alternative water. A similar discussion appears
in Report 104-169 of the Senate Environment and Public Works Committee on
S. 1316.
Requiring the supplier to provide alternative water will ensure public health
protection to the users of the water supply. Requiring the supplier to provide
alternative water will make it much easier for the primacy agency (and the
supplier facing potential SDWA liability) to ensure that the water actually
achieves the equivalent level of public health protection provided by the
applicable national primary drinking water regulations, as required by the
statute. It would be very time-consuming for a primacy agency (or supplier)
to determine whether alternative water obtained by users from a variety
of sources (commercial and potentially noncommercial) actually achieves
the level of public health protection required by the statute. In addition,
this requirement should provide a relatively simple mechanism for the supplier
and primacy agency to document that alternative water is actually being
provided to users on an ongoing basis. Finally, in some cases it may be
less costly for the water supplier to contract for alternative water than
for individual users to obtain and transport their own alternative water.
No changes were made to the guidance in response to this comment.
10. Comment: The draft guidance's reference to the
"reasonable cost" of alternative water should be deleted.
EPA agrees that the reasonableness of the cost of alternative water is
not a criterion for the alternative water exclusion in Section 1401(4)(B)(II)
and has deleted this reference from the guidance.
11. Comment: EPA should read Section 1401(4)(B)(ii)
to allow specified piped irrigation districts that would otherwise be
considered PWSs to avoid regulation as PWSs by "reducing connections"
to fewer than fifteen connections serving fewer than twenty-five individuals.
Some commenters indicated that they preferred a reading of Section 1401(4)(B)(ii)
whereby specified irrigation districts that would otherwise be considered
PWSs could avoid regulation as PWSs 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). However,
for a number of reasons described below, EPA believes that the better
interpretation is that which it proposed in the draft guidance. Under
this interpretation, an irrigation district referred to in Section 1401(4)(B)(ii)
that would otherwise be defined as a PWS because it provides water for
human consumption to at least fifteen connections or twenty-five regularly
served individuals may avoid regulation as a PWS only if the primacy agency
determines that all connections that use the district's water for
human consumption comply with subclause (II) or (III) of Section 1401(4)(B)(i).
First, piped irrigation districts that provide water for human consumption
to the requisite number of connections or individuals were already considered
PWSs under the pre-1996 definition. As such, the only change offered by
the 1996 SDWA Amendments to affect the status of these piped irrigation
districts was to provide them an opportunity to use these exclusions to
remove themselves from PWS status. This opportunity is not available to
any other types of piped water systems, and compliance with these exclusions
is likely to be 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
it has chosen is equitable and appropriate and protective of public health.
Second, the approach taken in the 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).
Some commenters also expressed confusion about the number of connections
for human consumption that a piped irrigation district must have to be
considered a PWS. The draft guidance and Questions 7 and 8 (Questions
8 and 9 in the draft guidance) were modified to clarify that, like other
types of water suppliers, the piped irrigation districts specified in
Section 1401(4)(B)(ii) are defined as PWSs in the first instance
only where they supply water for human consumption to at least 15 connections
or 25 regularly served individuals. However, as stated above, all
human consumption connections to this kind of PWS must comply with subclause
(II) or (III) of Section 1401(4)(B)(i) before the supplier will no longer
be considered a PWS.
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