United
Environmental Protection Office of Water EPA 816-R-98-010
Agency 4606 July 1998
°EPA Hypothetical State Programs for
Ensuring that All New Community
Water Systems and Non-Transient
Non-Community Water Systems
Demonstrate Technical, Managerial
and Financial Capacity
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This document describes four hypothetical State programs that meet the requirements of
§1420(a) of the 1996 Amendments to the Safe Drinking Water Act as outlined in the Guidance
for States on Ensuring that All New Community Water Systems and Nontransient, Noncommunity
Water Systems Demonstrate Technical, Managerial, and Financial Capacity. The approach of
each hypothetical State program is uniquely suited to its governmental and legal structures. The
purpose of this document is to demonstrate the variety of alternative approaches that States might
adopt, emphasizing the significant flexibility inherent in the statutory requirement and EPA's
guidance on this subject. Text boxes throughout the hypothetical program descriptions identify
key points that reviewers might note regarding each program submission.
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Case One
Background
State A1 has a large number of public water supplies and a large land area. In 1994, our
State developed a program to ensure that all new public water supplies demonstrate technical,
managerial, and financial capacity. Until 1994, our State had faced a rapidly growing inventory of
new, small water systems. Also, we had experienced significant increases in non-compliance with
our drinking water regulations, particularly by these new, small systems. As a result, the
legislature gave the State Department of Environmental Protection (DEP)—the State's primacy
agency—the authority to prevent the creation of new public water systems that did not have the
wherewithal to comply with our regulations.
Synopsis
Basis of Authority. The 1994 Amendments to the State's statutes on water supply
gave DEP the authority to require that all new public water systems demonstrate
technical, managerial, and financial viability before being awarded a construction
permit or an operating permit.
Demonstration of Control Points. Our program has two control points. The first
is a construction permit. No system can be constructed until the system owners
have completed an application that demonstrates all three aspects of capacity. Any
developer who tries to construct without a permit is subject to legal action by the
DEP. The second control point is an operating permit which ensures that systems
are built according to the plans and specifications approved for the construction
permit.
Plan for Implementation and Ongoing Evaluation. In terms of implementation,
we describe our ongoing efforts to hire and train staff for the program, and educate
developers of new systems. For the ongoing evaluation, our plan will emphasize
verification of program implementation. We also discuss our plan for data
collection and analysis that will be used in program evaluation in future years.
Basis of Authority
1The four hypothetical States in this document will be named using the first four letters of the
alphabet: State A, State B, State C, and State D.
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The drinking water statutes in our State were amended 4 years ago to address the problem
of "non-viable" new public water systems. Traditionally, the State had reviewed only the
technical aspects of a proposed new system's infrastructure (its plans and specifications) in
conjunction with county commissions (which issued construction permits). There was no review
of the managerial or financial aspects of capacity. Also, while the State had authority to issue
operating permits to water systems, these permits were very limited in nature. Specifically, there
was no provision to ensure that construction was completed in accordance with the approved
plans and specifications.
The 1994 legislation, however, broadened
the scope of State review of proposed new
systems. As codified in Chapter 46, Section 4 of
the State's General Laws, this new law covered
all public water supplies (both community and
noncommunity systems) and required the
following:
A reviewer should note that since this
legislation covers all public water supplies,
it exceeds the requirements of the SDWA,
which apply only to community and
nontransient, noncommunity systems.
No public water supply shall be awarded a construction permit or an operating permit
unless such public water supply demonstrates technical, managerial, and financial
viability to provide potable water that meets the primary drinking water standards
described in (Chapter 46, Section 1 of the General Laws). The Environmental Protection
Board shall promulgate amendments to the Administrative Code, Section 247, to
incorporate these changes in permitting requirements and take such action as necessary
to enforce these requirements.
The regulations issued by the State DEP pursuant to the 1994 legislation required that the
following items be part of an application for a construction permit:
Technical
A description of the proposed new system's service area, and a description of the
service area(s) of any nearby system(s).
A description of the proposed source(s) of water for the new system and a
description of the treatment processes that will be used to ensure that the water is
potable and meets all State standards.
Plans and specifications for the design and construction of the system.
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Managerial
An estimate of current and
future water demands for the
system.
A reviewer should note that the State's
1994 statute, plus the regulations
implementing that statute, demonstrate the
State's authority.
Descriptions of the experience
and expertise of all proposed
managerial and operational personnel for the system.
An organizational chart of the system and identification of a responsible party.
Financial
A 5-year financial plan for the system, showing estimated receipts and
expenditures, including provision for a fund to cover the cost of repairs and capital
replacement.
The regulations implementing the 1994 statute also enhanced the State's authority to use
an operating permit to ensure the technical capacity of new water systems. The legislative
history showed that many of the problems in State A occurred because developers of new systems
failed to construct the system in accordance with the approved plans and specifications.
Therefore, the State also has the authority to refuse to give an operating permit until the system
provides as-built plans and a certification by a professional engineer that the system was
completed in accordance with the State-approved plans and specifications. The regulations also
require an inspection of the system after construction and prior to issuance of an operating permit.
Our State Attorney General has certified that the State has the necessary authority to meet
the requirements of Section 1420(a) of the Safe Drinking Water Act. Her opinion is based on an
analysis of both the statutory authority and the implementing regulations described above. Her
opinion states, in part: "... the state has the statutory authority to require a demonstration of
technical, managerial, and financial capacity from all proposed new public water systems in the
state. The regulatory basis for implementing this authority resides in Administrative Code,
Section 247, . . ."
Demonstration of Control Points in the New System Development Process
There are two key control points where the State can affect the development of proposed
new water systems: the construction permit and the operating permit.
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A reviewer should note that the State has
two control points: the construction permit
and operating permit.
The construction permit is the first
control point. The 1994 legislation
fundamentally changed the process for new
system development and moved authority from
the counties to the State. The State DEP now
has the final say on whether to issue a permit to
construct. Equally important, its review process requires that the proposed new system
demonstrate all aspects of capacity—technical, managerial, and financial—before the permit is
issued.
The second control point is the operating permit After the permit to construct is
issued, the State reviews the system again before issuing an operating permit. This enables the
State to ensure that developers of new systems have constructed those systems in accordance
with the approved plans and specifications.
Both control points are implemented by the State DEP. It has staff with adequate
qualifications to evaluate all aspects of new system capacity. The most comprehensive analysis
takes place during the construction permit process. As shown on the previous page, systems are
required to document technical, managerial, and financial capacity with their applications for
construction permits. The operating permit review (as applied to new systems) is less
comprehensive. Its basic purpose is to ensure that the system was constructed in a manner that is
consistent with the designs and plans that were reviewed and accepted by the State during the
construction permit process.
Plan for Implementation and Ongoing Evaluation of the New System Capacity Program
Regulations pursuant to the 1994 statute were promulgated during FY97. Therefore, the
program is operational. To verify that our program is being implemented, we plan to collect and
submit the following data during FY99 and for each future year of program implementation:
• Data on the implementation of our new program. This will include statistics on the
number of applications for construction permits, the number of these permits that
were denied, and the number of permits that were amended prior to submission in
response to DEP comment. It also will include statistics on the issuance of
operating permits to new systems.
Denial of permit applications, or amendment of those applications to ensure
that systems had technical, managerial, and financial capacity, is one way to
demonstrate that the DEP implemented the regulations.
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A reviewer should note that the plan
focuses initially on a verification of
program implementation. The State also
will propose a longer term plan for
evaluation of the effectiveness of the
program.
The State has identified several areas where
further implementation will be undertaken
during FY99. These include:
• Continuing to hire staff.
Initially, we did not have staff
with adequate training to
evaluate all components of
capacity. During FY97 and
FY98, we relied on contract personnel with expertise in these areas. During FY98,
we received authority to change position descriptions and hire personnel who met
our needs. This process is ongoing.
• Training all staff. During FY97, we produced a rudimentary guidance for all staff
associated with the new program. In FY99, we plan to revise this guidance
document to incorporate lessons learned in the first two years.
• Educate developers. During the first two years of implementation, developers
were given our regulations. In FY99, we will issue a guidance document that
helps explain the program to them.
For the longer term, we propose our plan for evaluating the success of our new system
capacity program. Our primary objective in evaluation is to show that the new statute and
regulations accomplished their objective. We intend to show that all new systems that have been
given construction and operating permits under the new program meet our requirements for
technical, managerial, and financial capacity.
We will begin with the collection of baseline data. The first data element would be an
assessment of the capacity of new systems created and approved under the old procedures prior
to the 1994 statute. The elements of technical, managerial, and financial capacity will be the same
as those evaluated under the new construction permit and operating permit requirements. The
next data element would be an assessment of all systems that have received construction and
operating permits after the 1994 statute was implemented. Our expectation is that the capacity of
new systems has substantially improved as the 1994 statute was implemented, particularly in the
managerial and financial areas that were not required for construction permits prior to 1994.
We also intend to collect information that may be helpful to the State as it implements the
new program. This evaluation exceeds the scope specified in the Safe Drinking Water Act
Amendments, but we believe it will improve our program. We wish to assess, for example,
whether the implementing regulations were clear, whether the guidance documents issued to
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applicants were helpful, and so forth. This may require a small survey of new system owners.
The results of this survey could then be used to amend future versions of regulations or guidance
documents.
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Case Two
Background
State B has two distinguishing characteristics that affect its new system capacity program.
First, our State historically has had large county governments that perform many functions that
might have been performed at the municipal level in other States. Authority for approval of all
land development has been vested in the counties for over 40 years. Second, our State has
adopted state-wide legislation authorizing growth management and regional planning. This
legislation has been tied closely to legislation requiring state-wide planning for public water
supplies.
Synopsis
Basis of Authority. State B draws its legislative authority from two sources: the
Growth Management and Regional Planning Act and the Public Water Supply
Planning Act. The Water Supply Planning Regulation ties the two pieces of
legislation into one process that uses a water supply plan requirement as a means
of assessing capacity.
Demonstration of Control Points. Approval of a water supply plan is the State's
control point. A system cannot initiate construction until both the county planning
commission and the State Department of Health have approved the water supply
plan. The water supply plan provides information on all three aspects of capacity.
Plan for Implementation and Ongoing Evaluation. The program for State B has
been in operation for several years. The State has developed a plan for verifying
effective implementation. We have also created a process for evaluating the
effectiveness of the program in the context of both the state Public Water Supply
Planning Act and the SDWA.
A Basis of Authority
Our legislative authority is drawn from the Public Water Supply Planning Act and from the
Growth Management and Regional Planning Act. The Growth Management and Regional
Planning Act requires counties to submit and enforce Regional Plans for all land use and
development within their jurisdiction. The Public Water Supply Planning Act requires the
counties to ensure that all proposed public water supplies correspond to the Regional Plan. The
Public Water Supply Planning Act also requires the State to ensure that all proposed public water
supplies demonstrate adequate capacity. This legislation states:
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All community water systems and nontransient, noncommunity water systems shall have
an approved water supply plan as defined in Chapter 32, Section 9 of the Annotated
Code. All persons proposing to construct a community water system or a nontransient
noncommunity shall submit water supply plans as part of their application for a
construction permit as required in Chapter 32, Section 6 of the Annotated Code. The
Secretary of Health shall prepare regulations implementing this requirement. Such
regulations shall be promulgated no later than 24 months after the effective date of this
Act.
The regulatory authority promulgated by the State is SBAC 222-333-000. It establishes a
process that formalizes the relationship between the State and the counties in implementing both
the Growth Management and Regional Planning Act and the Public Water Supply Planning Act.
The regulation (SBAC 222-333-000) states:
A proposed community water system or proposed nontransient, noncommunity water
system may not initiate construction before completing an approved water supply plan.
To ensure consistency with Regional Plans, the water supply plan must be submitted to
the appropriate county planning commission. If the water supply plan is found to be
inconsistent with the Regional Plan, the county planning commission must reject the
water supply plan pending revision. If the water system plan is found to be consistent
with the Regional Plan, the county planning commission must forward the water supply
plan to the State Department of Health. The State Department of Health must review the
water supply plan to ensure that the proposed system demonstrates adequate technical,
managerial, and financial capabilities at present and over the long-term. If the water
supply plan does not demonstrate adequate capacity, the State Department of Health will
return the water supply plan to the water system for further clarification. If supplemental
information also proves inadequate, the State Department of Health must reject the water
supply plan. Water supply plans that are determined by the county planning commission
to be consistent with the Regional ^^^^^^^^^^^^^_^^^^^^^^^^^^^^
Plan and are determined by the State
Department of Health to demonstrate A reviewer should note that State B has
adequate capacity will be approved to
initiate construction.
The State Attorney General has
certified that the legislative and regulatory
authority described above provides the State
with the necessary authority to implement the
clear legislative and regulatory authority to
implement a program for ensuring capacity
in new community and nontransient,
noncommunity water systems. The
program relies on a well-defined
relationship between the county
governments and the State Department of
State program for ensuring capacity in new tiealm.
community water systems and new
nontransient, noncommunity water systems as
required under the Safe Drinking Water Act Amendments of 1996. Her opinion states:
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The State B Water Supply Planning Act and SBAC 222-333-000 provide State B with the
statutory and regulatory authority necessary to ensure technical, managerial, and
financial capacity in all new community water systems and all new nontransient,
noncommunity water systems.
The implementing regulation cited above (SBAC 222-333-000) has been further clarified
with two additional implementing documents: 1) a Memorandum of Understanding between the
counties and the State Department of Health outlining a Standard Operating Procedure for
coordinating approval of water supply plans; and 2) a Guide to Systems for Preparing Water
Supply Plans. These documents are not included in this submission, but can be provided for
review upon request.
The State has developed several additional programs that do not directly address the
capacity of proposed systems, but do serve to limit the number of new systems that are ultimately
developed. As part of the overall growth management program for the State, our legislature has
provided counties with financial incentives to reject applications for construction of new stand-
alone systems. Specifically, the legislature authorized planning grants for counties that were
willing to deter creation of new stand-alone public water systems by extending service from
existing water systems, including (if necessary) the county's own water system. Also, in its
Intended Use Plan for the Drinking Water State Revolving Fund (DWSRF), the State announced
its intention to give high priority to projects that are consistent with this overall approach.
Demonstration of Control Points in the New System Development Process
The control point in State B's program is water supply plan submission and approval.
New systems cannot be developed without approved water supply plans. Approval must be
granted by both the county and State Department of Health before construction of the water
system can be initiated. If a system begins construction prior to approval of its water supply plan,
the State will stop construction until the water supply plan is approved. If a new water system
completes construction and begins operation prior to completing an approved water supply plan,
the county will be required to take over operation of the system until the water supply plan has
been approved (using its authority under SBAC 222-333-005).
The elements reviewed by the State
Department of Health are outlined in the Guide
to Systems for Preparing Water Supply Plans.
They include:
Technical
A description of the service area
for the system.
A reviewer should note that in State B, no
water system can begin construction until
their water supply plan has been approved.
The water supply plan provides a
consolidated approach for assessing
technical, managerial, and financial
capacity in proposed systems.
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Managerial
Financial
A description of the water sources, treatment in place, and proposed treatment
systems.
An estimate of total water demand, and a projection of future water demand for
the next 10 years. These demand projections must be based on residential,
commercial, and agricultural plans for land use in the service area.
A management plan that describes current operating procedures and identifies the
personnel responsible for operation and management of the system.
A financial plan, linked to the 10-year projection of demand, that shows how the
system will meet its projected maintenance and capital investment needs. This
financial plan must be based on the most recent audited financial statement
prepared by the system and submitted to the State Department of Health (an
annual requirement of the Department).
Plan for Implementation and Ongoing Evaluation of the New System Capacity Program
The program in State B is already implemented. The State has 20 years of experience
with its Public Water Supply Planning Act. The Growth Management and Regional Planning Act
is newer, but has been fully integrated in a comprehensive program for new system capacity. The
program is fully staffed, personnel are trained, and all documents necessary for implementation
have been published.
Verification of program implementation will be provided by submitting:
• Summary statistics on the implementation of the two Acts during FY99. This will
include data on the number of water supply plan submissions and the disposition of
these submissions. As we will show in our evaluation plan, these statistics will not
only help to verify program implementation, they also will show that our program
works. For each future year of program implementation, we will submit the
summary statistics.
• A selection of implementation documents including job descriptions for staff
implementing the program, guidance documents, and related materials.
We also plan to complete a more thorough, long-term evaluation of the program, which
will focus on program outcomes. The scope of this evaluation may exceed the requirements of
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the Guidance, but the State believes the evaluation will improve program effectiveness. We will
design this evaluation to be consistent with the evaluation objectives specified in the Act that
initially created the program. The Public Water Supply Planning Act used water supply planning
as a method of ensuring that new public water supplies had the wherewithal to meet all of the
State's drinking water regulations. Today, particularly after the Growth Management and
Regional Planning Act, we have refined our requirements to focus on technical, managerial, and
financial capacity. The basic question for our evaluation, therefore, is whether the water supply
plans (on file in the Department of Health) meet those requirements. To evaluate the outcomes of
our program, we will select a random sample of new systems approved during FY99 and provide
a detailed review of the water supply planning process to determine whether all of these systems
truly demonstrated technical, managerial, and financial capacity.
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Case Three
Background
State C is relatively small in both land area and population. Traditionally, our Public
Water System Supervision (PWSS) program has reviewed all proposals for the creation of new
public water systems. County governments have the authority to approve new land development,
but they defer to the State on drinking water issues. The Drinking Water Administrator has used
his statutory and regulatory authority to implement a program to ensure that all new community
water systems (CWSs) and nontransient, noncommunity water systems (NTNCWSs) could
comply with the State's primary drinking water regulations.
Synopsis
Basis of Authority. Using a broad legislative mandate to "protect the quality of
drinking water," State C has promulgated an implementing authority in its
regulations that requires proposed systems to demonstrate technical, managerial,
and financial capacity before a construction permit will be granted.
Demonstration of Control Points. A construction permit is the primary control
point. State C requires detailed documentation demonstrating adequacy in all
components of capacity at the control point. Systems attempting to proceed
without the construction permit will be stopped by the State until adequate
demonstration of capacity has been provided.
Plan for Implementation and Ongoing Evaluation. The program for State C is
fully implemented. State C has kept records of permit actions for over 20 years.
The State will continue to collect information that can be used to track permit
approval rates, permit denial rates, and the performance of systems for whom
approvals were granted. The State's documented history of its review of
applications for construction permits will provide a basis for quantitative
evaluation of program implementation and effectiveness.
Basis of Authority
While State C has a broad statutory mandate to "protect the quality of drinking water
provided to residents of the State," the implementing authority for the state program for
ensuring capacity in new community water systems and new nontransient, noncommunity water
systems resides in regulation in the state's Administrative Code. State Code R. 555-5555 states:
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All proposed community water systems and nontransient, noncommunity water systems
must submit an application and supporting documentation when requesting a permit for
the construction of a new system. Upon receipt of a complete application and
appropriate fees, proposed systems will be evaluated. Proposed systems must
demonstrate technical, managerial, and financial capabilities to reliably meet
performance requirements on a long term basis and be self-sustaining. If review of the
application shows deficiencies, a formal request for clarification will be made to the
applicant. Upon failure to receive clarifying information, or if the supplemental
information is unsatisfactory, the permit will be denied.
Our State Attorney General has certified that the legislative and regulatory authorities
described above provide us with the necessary authority to meet the requirements of the capacity
development provisions of the Safe Drinking Water Act Amendments of 1996. His opinion
states:
. . .the Public Health Protection Act provides adequate statutory authority to promulgate
State Code R. 555-5555. This regulation provides the State with the authority to require of all
proposed new community water systems and new nontransient, noncommunity water systems a
demonstration of adequate technical, managerial, and financial capacity . . .
A reviewer should note that State C
possesses a clear implementing authority
that allows the State to deny a construction
permit for a new system if that system lacks
adequate technical, managerial, and
financial capacity.
For the past 20 years, our Drinking
Water Administrators have aggressively used
this authority to enforce stringent requirements
on those who propose new drinking water
systems. Believing that all public water systems
should have the wherewithal to provide safe
water, and believing that new systems that are
poorly designed, constructed, and operated often
lead to non-compliance with the State's drinking
water regulations, these Administrators have
consistently used their authority to deny construction permits to proposed new systems with
inadequate capacity.
Our implementing authority for ensuring capacity is further strengthened by additional
regulations that inhibit the development of new, poorly-planned systems:
• Because most proposed systems in the State rely on ground water sources, we
have adopted some of the most stringent well construction standards in the nation.
The resulting cost of well construction deters financially unsound proposals.
• No applicant can receive a construction permit if the proposed system is within 1
mile of a distribution main of an existing system. While exemptions can be
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granted, the mere existence of this regulation also encourages connection to
existing systems.
The State's Public Water System Supervision (PWSS) program is located in the
Department of Health. The regulations described above are implemented exclusively by that
Department. Given the emphasis that the State Drinking Water Administrator has placed on this
issue of new system viability for the past 20 years, he has been successful in creating job
descriptions for personnel in the State PWSS program so that these personnel have the training to
evaluate technical, managerial, and financial aspects of drinking water systems. Since all expertise
is available in-house, and since no responsibilities are delegated to other agencies, there is no need
for collaborative arrangements.
Demonstration of Control Points in the New System Development Process
As shown in citation provided above, the construction permit is our primary control point.
We have clear authority to deny a permit to a system that does not demonstrate that it has the
necessary technical, managerial, and financial capacity. To implement this authority fully, we
require each system to submit information concerning capacity as part of the permit application.
We evaluate this information to assess system capacity. The following information is required for
submission in the regulations:
Technical
Managerial
An engineering report providing a description of the proposed service area,
proposed sources, a description of treatment processes to be employed, and an
estimation of maximum and future water demands
Plans and specifications bearing the seal of a licensed professional engineer.
A certification of ownership signed by the responsible owner or authority.
A description of the system's compliance
with the state's operator certification
regulations
A chart of the organizational structure
showing all aspects of water system
management and operation, with detailed
descriptions of major responsibilities for
A reviewer should note that State C
has a demonstrated record of using
its control point to ensure adequate
capacity since the implementation
of the authority. The control point
allows the State to evaluate all
aspects of capacity thoroughly.
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each management position shown on the organizational chart and a description of
the water system's legal basis.
An Emergency Management Plan that includes identification of known and
potential natural and human-caused risks to the water system. It must also identify
personnel responsible for actions and describe notification procedures and means
for implementation.
A description of the training and/or experience of new owners/management in
managing a public water system; include description of proposed plans for
assuring on-going training.
Financial
A budget developed prospectively for a 5 year period that includes revenues,
operating expenses, reserves, and capital improvements.
A description of budget/expenditure control procedures and reports to assure
adequate budget control.
Any system that attempts construction without a permit will be stopped by the State until
the necessary demonstrations are made. Legal action may be taken against the responsible party.
We have a demonstrated record of using our authority and control point to stringently review all
applications. We have required supplemental information from over 60 percent of our applicants.
We ultimately denied construction permits to just under 30 percent of those applicants. The
remaining applicants made sufficient changes to warrant approval.
Plan for Implementation and Ongoing Evaluation of the New System Capacity Program
Our program for ensuring capacity in new
community and new nontransient, noncommunity water
systems is currently functioning effectively. Because our
PWSS program has been committed to new system
capacity, and because we have documented our experience
for 20 years, our plan for ongoing evaluation of our new
system capacity assurance plan is comprehensive. We can
not only verify that our program has been implemented, but
we also can evaluate the program's success and compare
each year's performance with those of previous years.
Our database enables us to demonstrate, on an annual basis, that:
A reviewer should note that the
State's documented history of its
review of applications for
construction permits will provide a
basis for quantitative evaluation of
program implementation and
effectiveness.
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• We have reviewed all applications for construction permits, and that no system
was constructed without the appropriate permit.
We have denied construction permits, and required changes in other applications,
so that every approved application demonstrates compliance with our new
system capacity assurance program.
We can present this evaluation quantitatively, comparing previous years to demonstrate
how our program has improved over time. For example, we have longitudinal data on:
the number of construction permit applications
• the number denied
the reasons for denial
• the number changed before approval
the types of changes that were required.
Our past evaluations of these longitudinal data will show that developers of new systems
have learned about our requirements. Over time, the rate of denials has slowed as system owners
and operators better understand our regulations. Over time, we have better compliance with the
financial and managerial components of capacity (which were a difficult subject for systems when
they were first introduced). These, and other results from our evaluations assist our program in
making improvements in implementation.
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Case Four
Background
State D is a predominantly rural state with few large population centers. Historically,
towns in the state grew up around industrial centers and mining operations. The State recently
has attracted a number of factories and assembly plants for high-tech operations, including
computer manufacturing. As a result, the State is experiencing a new influx both of skilled
laborers and white collar professionals. New development has been of two types: high-end
residential developments and manufactured housing communities. Many of these new
developments build their own water systems. Over the past two years, systems serving these
communities have made up the vast majority of new community and nontransient, noncommunity
water systems in the State.
Synopsis
Basis of Authority. The State legislature has recently enacted legislation giving the
Department of Environmental Protection statutory authority to implement a
capacity assurance program for new systems. The Department is currently
developing draft regulations to implement the program.
Demonstration of Control Points. The final program, when fully implemented, will
employ an operating permit as its control point. Each system will be required to
submit for approval a Capacity Development Assessment Package as part of the
application for the operating permit.
Plan for Implementation and Ongoing Evaluation. The State will verify program
implementation by tracking key implementation statistics, including number of
permit applications, number of permits denied, and number of permits modified as
a result of Department comment. The State will evaluate program success by
comparing initial assessments of capacity against assessments of capacity after two
years of operation.
Basis of Authority
The State legislature recently enacted legislation giving the State Department of
Environmental Protection statutory authority to implement a program to ensure capacity in new
community water systems and new nontransient, noncommunity water systems. In part, the
statute reads:
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The State Department of Environmental Protection has the authority to promulgate all
regulations necessary to ensure that all new community water systems and new
nontransient, noncommunity water systems commencing operation after October 1, 1999,
demonstrate technical, managerial, and financial capacity with respect to each drinking
water regulation in effect, or likely to be in effect, on the date of commencement of
operations.
The State Attorney General certifies that: "State D possesses the statutory authority to
ensure that all new community water systems and new nontransient, noncommunity water systems
. . . demonstrate technical, managerial, and financial capacity . . ."
Because this statutory authority was not enacted until July 1998, the Department of
Environmental Protection has not yet promulgated regulations implementing the program.
Currently, the Department is drafting language to amend existing regulations that require all new
community water systems to receive an operating permit prior to commencing operations. At
present, the operating permit functions essentially
as a fee program and requires systems to submit
nothing more than a simple application identifying
the name of and contact information for the system
owner and/or manager. The amended regulation
will extend the requirement to all new nontransient,
noncommunity water systems and will require the
submission of a Capacity Development Assessment
Package as a supplement to the existing application.
The exact contents of the Assessment Package will
be included in the amended regulation. It will
cover all aspects of capacity and will include:
Technical
A reviewer should note that State D
possesses the statutory authority to
implement a program to ensure capacity in
new community and nontransient,
noncommunity water systems. Although the
State has not yet promulgated regulations
implementing the program, regulations are
being developed and are scheduled for
promulgation in February, 1999. The
State 's schedule is realistic based on their
past performance.
Managerial
a complete system description;
as-built plans and a certification by a professional engineer that the system was
completed in accordance with the State-approved plans and specifications;
an infrastructure replacement plan
an operations plan;
certification of ownership;
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• an organizational chart that includes an explanation of responsibilities for all
personnel;
Financial
• a budget developed prospectively for a 7-year period; and
• a plan for developing an emergency reserve fund.
Because the language of the draft amended regulation has not yet been reviewed by the
Department's internal review committee, it can not be provided in this program description. The
amended regulation will be provided for USEPA review as soon as it has been promulgated by the
Department. The schedule is as follows:
• September 1, 1998—complete draft regulation amendment language
• October 1, 1998—complete review by internal review committee and complete all
revisions required by the committee
October 15, 1998 to January 15, 1999-public comment period
• February 15, 1999—promulgate amended regulation
This schedule provides more than ample time to respond to any unforseen delays and fully
implement the regulatory program prior to October 1, 1999. This schedule is realistic based upon
our State's past performance. Two (2) years ago the legislature mandated changes in our sanitary
survey regulations. We developed and promulgated those revised regulations in six (6) months.
That sanitary survey regulation was at least as complex as this new systems capacity regulation.
Demonstration of Control Points in the New System Development Process
The primary control point exercised by State D will be the operating permit requirement.
It will be implemented as discussed above.
Plan for Implementation and Ongoing Evaluation of the New System Capacity Program
The first step in our program evaluation process will
be to verify program implementation. To do this, State D
will collect and track the following information:
Copies of all submitted Capacity
Development Assessment Packages and the
Department's written evaluation of each
submission.
A reviewer should note that State D
has a plan for verifying
implementation and for evaluating
the success of the program. The
State plans to use the evaluation of
program success to make
adjustments to its program.
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Implementation data, including statistics on the number of applications for
operating permits, the number of these permits that were denied, and the number
of applications/Assessment Packages that were amended prior to re-submission in
response to Department comment on the original Capacity Development
Assessment Package submission. The State is currently developing a database that
will allow the Department to use and analyze this data.
The second step is to evaluate the effectiveness of the State program for ensuring capacity
in new community water systems and new nontransient, noncommunity water systems. This will
be accomplished by specifically evaluating compliance and sanitary survey results for newly
created systems. If consistent weaknesses or inaccuracies are identified, the Department will
make appropriate changes to its new system program.
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