EPA-816-Z-98-004
Friday
May 8, 1998
\
Part VI
Environmental
Protection Agency
Definition of a Public Water System in
SDWA Section 1401(4) as Amended by
the 1996 SDWA Amendment; Notice
2573
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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.
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comments on the draft guidance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draft guidance is published as an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 This notice publishes draft guidance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
(HI).
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 "[tjhese 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
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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' 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)).
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
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.
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 2 expands the definition of a
PWS to read as follows:
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 3 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").
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
2 All references in this Guidance to section 1401
refer to section 1401 of the SDWA.
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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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.4
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.
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.
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,
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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
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
140 1(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.5
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
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.
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) .6
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
6 Applicable national primary drinking water
regulations means the NPDWRs that would apply
to the water supplier if all its connections exclude
pursuant to the alternative water and treatment
exclusions were counted as connections.
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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 7 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.
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.8 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
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.
8 See footnote 5.
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.
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 SOW A
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
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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
Ql: 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)?
Al: 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?
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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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