UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: August 5, 1998
Federal Register/Vol. 63, No. 150/Wednesday, August 5, 1998/Notices pp. Page 41939-41946
Part VI: Environmental Protection Agency, SDWA Section 1401(4) Public Water System
Definition as Amended by 1996 SDWA Amendments; Notice.
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-6136-7]
Definition of a Public Water System in
SDWA Section 1401(4) as Amended by the
1996 SDWA Amendments
AGENCY: Environmental Protection
Agency.
ACTION: Notice.
SUMMARY: The U.S. Environmental
Protection Agency (EPA) is announcing
issuance of guidance on "Definition of a
Public Water System in SDWA Section
1401(4) as Amended by the 1996 SDWA
Amendments." The guidance is published as
an Appendix to this notice.
FOR FURTHER INFORMATION
CONTACT: The Safe Drinking Water
Hotline, toll free (800) 426-4791, or Jon
Merkle, telephone (415) 744-1844.
SUPPLEMENTARY INFORMATION:
Background
The definition of a "'public water system"
(PWS) is central to delineating the scope of
many Safe Drinking Water Act (SDWA)
requirements. The 1996 amendments to the
SDWA broadened 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. Prior to the 1996
amendments, the SDWA defined the term
public water system to include only piped
water systems. The guidance published today
is intended to interpret the new statutory
language and provide guidance on this
interpretation and suggested implementation
to EPA Regions and States with primary
enforcement responsibility for the PWS
program.
The Agency published a draft of this
guidance in the Federal Register on May 8,
1998. The Agency solicited comments on the
draft guidance and, after consideration of
numerous comments on the draft guidance,
the Agency prepared the final guidance
which is being published today. EPA has
prepared a detailed response to comment
document, which is available upon request
and which will be posted on EPA's Office of
Ground Water and Drinking Water
Homepage, which can be accessed at
www.epa.gov/ogwdw.
Dated: July 31, 1998.
J. Charles Fox,
Acting Assistant Adm inistrator for Water.
Append ix--Definition of a Public Water
System in SDWA Section 1401(4) as
Amended by the 1996 SDWA
Amendments
Table of Contents
Introduction
Background
Application of Section 1401(4)
I. Systems Newly Defined As Public Water Systems
A. Statutory Language
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 D istricts
Questions & Answers
Disclaimer
Introduction
This document provides guidance to the
primacy agencies1 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
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.
(OECA). OECA has concurred with the
contents of this document and will
incorporate and implement it through its
enforcement and compliance assurance
directives and operating protocols.
Background
The term public water system (PW S) 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 the
SDWA "water [provided] for human
consumption through pipes or other
constructed conveyances." This change
reflected Congress' understanding that the
human consumption of such untreated canal
water could constitute a significant risk to
public health, and that appropriate measures
were warranted to provide consumers of this
water with a level of health protection
equivalent to that from drinking water
standards. At the same time, Congress
provided several means by which certain
water suppliers could be excluded from this
definition, and provided that systems newly
subject to SDWA regulation under this
amended definition would not be regulated
until August 6, 1998.
The amended Section 1401(4) does several
things. First, effective August 6, 1998,
Section 1401(4)(A) expanded 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 140 l(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
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health, and as a consequence of such actions,
the systems are no longer regarded as serving
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.
EPA published a draft of the guidance on
May 8, 1998 (see 63 FR 25740-46),
considered public comments on the draft, and
made changes based on the public comments.
Application of Section 1401(4)
/. Systems Newly Defined as Public Water
Systems
A. Statutory Language
As described above, effective August 6,
1998, Section 1401(4)(A) of the SDWA2
expanded the definition of a PWS to read as
follows:
The termpublic 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
supplier3 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 are
defined as public water systems subject to
SDWA regulation. See 40 CFR Sec. 141.2.
EPA has interpreted the term human
consumption to include drinking, bathing,4
showering, cooking, dishwashing, and
maintaining oral hygiene, and this
interpretation has b een uph eld by the courts.
See United States v. Midway Heights County
Water District, 695 F. Supp. 1072, 1074
(E.D. Cal. 1988) ("Midway Heights").
Under the final rule published in the
Federal Register on April 28, 1998 (63 FR
233 62, at 23367), states were given two years
from the date of publication to adopt the new
statutory definition of public water system
quoted above, or a more stringent definition,
in order to obtain or maintain primacy.
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 are 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 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.5
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
2A11 references in this Guidance to Section 1401 refer to
Section 1401 of the SDWA.
5 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)
"EPA interprets the term "bathing" to mean use of water
for personal hygiene purposes in a home, business setting,
school, etc. The term "bathing" does not 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.
5One 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.
or waterway, or whether it is essentially a
manmade conduit. The primacy agency
should use the following factors to decide
whether a particular water body is a
constructed conveyance. 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 modification where activities such as
mining, dredging, channelization, or bed or
bank modification are of an appropriate
magnitude to change the character of the
water body. 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 a
particular water body is both "constructed"
and a "conveyance" based on the factors
described above, at least as to particular users
whose status as "connections" is in question,
the water body is a constructed conveyance.
Primacy agencies should also determine
whether to consider as part of a public water
system, those natural waterway portions of a
water delivery system composed in part of
constructed conveyances.
While irrigation-related entities and their
canals are likely to be the most common
systems newly defined as PWSs under the
expanded definition in Section 1401(4),
mining and other industrial entities that
convey water may also fit within the
definition if their water is used for human
consumption.
C. Identification of Public Water Systems
Under the Revised Definition
Primacy agencies should examine their
areas of jurisdiction to determine if there are
any water suppliers providing water through
constructed conveyances for human
consumption that meet the new public water
system definition.
The addition of ' 'constructed
conveyances" to the definition of a public
water system presents new questions about
how to apply two key, existing components
of the definition to water suppliers using
constructed conveyances. A detailed
discussion of these two components is
provided below.
Providing Water. The first component is
whether the supplier is "providing" water
within the meaning of Section 1401(4). New
questions about this component arise because
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use of water from open conveyances may be
less apparent than from piped systems. Thus,
it is important to clarify those conditions
under which a supplier of water through
constructed conveyances would be
considered to have "provided" certain users
with water.
In describing a public water system, EPA's
regulations and guidance use such terms as
1 'serves" and ' 'delivers"—often though not
always in the context of ' 'customers" (see,
e.g., 40 CFR Sec. 141.2). For the supplier to
be providing water to users, there must be an
explicit or implied arrangement or agreement
of some kind between a supplier and
individuals using water. A contractual,
operating or service arrangement is the most
obvious example of an explicit agreement or
arrangement to provide water.
Where the existence of an explicit
arrangement or agreement is not obvious
from the facts, the primacy agency should
decide whether or not there is an implicit
arrangement or agreement based on two
factors: whether the supplier knows or should
know that the water is being taken, and
whether the supplier has consented to it
being taken. A supplier that takes actions that
a property owner would ordinarily take to
maintain his or her property rights against
unauthorized diversions should be able to
demonstrate that there is no implied
arrangement or agreement to "provide"
water. A supplier would not be expected to
go beyond its normal inspections or
operation of water conveyances to discover
unauthorized diversions, or to do more than
those actions typically used to maintain
rights against the adverse possession of
interlopers to show lack of consent.
Human Consumption. The second key
component of the definition, which is distinct
from the component as to whether a supplier
is "providing" water, is whether water is
being used for "human consumption."
Whether a water system is supplying water
through constructed conveyances to a
connection for human consumption should be
determined by whether the water supplier
knows or should know that users at that
connection are using the supplier's water 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 to ascertain
whether they may be defined as PWSs under
the revised definition, the suppliers should
undertake reasonable actions within their
authority to ascertain their users' water use
patterns (e.g., surveys of any water users that
might be using the water for human
consumption). Water suppliers that make
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. 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 theirwater 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 reasonable actions to document water
use patterns, water suppliers need to consider
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 water it supplies 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 may wish to request
documented evidence of the suppliers'
reasonable efforts to ascertain these water
uses. A supplier's failure to make a
reasonable 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, SDWA
Section 1 414 continues to authorize EPA to
bring an enforcement action against a system
which EPAbelieves is a PWS.
Under amended Section 1401(4), 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 is 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.
//. The Exclusions in Section 1401 (4)(B)(i]
A. Statutory Language
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Section 1401(4)(B)(i) provides limited
exclusions to the "connection" componentof
the PWS definition to systems that deliver
water through constructed conveyances other
than pipes. These exclusions are not available
to piped water systems., with the exception of
certain piped irrigation districts described in
Section 1401 (4)(B)(ii) and discussed in
Section III, below.
Specifically, Section 1401(4)(B)(i)
provides that a connection to a system that
delivers water through constructed
conveyances other than pipes is excluded
from consideration as a ' 'connection" for
purposes of Section 1401(4)(A) under three
circumstances:
(1) Where the water is used exclusively for
purposes other than residential uses
(consisting of drinking, bathing, and
cooking, or other similar uses);
(2) where EPA or the State (where the
State has primary enforcement responsibility
for PWSs) determines that alternative water
to achieve the equivalent level of public
health protection provided by the applicable
national primary drinking water regulations
is provided for drinking and cooking;
(3) where EPA or the State (where the
State has primary enforcement responsibility
for PWSs) determines that the water provided
for drinking, cooking, and bathing is treated
(centrally or by point of entry) by the
provider, a pass-through entity, or the user to
achieve the equivalent level ofprotection
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.6
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 140 l(4)(B)(i)
1. The "Other Than Residential Uses"
Exclusion. If water provided by a water
supplier to a particular connection is used
6The three exclusions above do not otherwise affect the
manner in which primacy agencies have defined a
connection for the purposes of the SDWA.
exclusively for purposes other than
residential uses, consisting of drinking,
bathing, and cooking, or similar uses, Section
1401(4)(B)(i)(I) applies to that connection.
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.
While this 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).
2. The Alternative Water and Treatment
Exclusions. In contrast to the "other than
residential uses" exclusion described above,
the "alternative water" and ' 'alternative
treatment" exclusions enable the primacy
agency to determine that a water supplier that
does meet the definition of a PWS is
providing adequate health protection through
the means specified in Section
1401(4)(B)(i)(II) or (III), and thus should not
be regulated as a PWS.
The alternative water and alternative
treatment exclusions apply only after the
primacy agency has made the determination
that the supplier complies with the exclusion
criteria. If the primacy agency provides the
supplier with a written determination that the
exclusions in Sections 1401(4)(B)(i)(II) and
(III) apply, then an eligible water supplier
can reasonably rely on those exclusions, as
long as they continue to be maintained in
practice, to avoid classification as a PWS
subject to the SDWA or to continue to
provide users of1 '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
140 l(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 statute does not require
the supplier to 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. Under the
SDWA, public water systems, rather than
users, are responsible for providing safe
drinking water absent an explicit statutory
provision to the contrary (as in the alternative
treatment exclusion, discussed below).
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.7 The primacy agency
will make this determination based on its
own criteria regarding which alternative
water sources, and which associated
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 cost of the water supplied. The water
supplier may also contract with a third party
to deliver the water 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 1 401(4)(B)(i)(III) must
demonstrate to the primacy agency that the
water that it supplies for drinking, cooking
'Applicable national primary drinking water regulations
means the NPDWRs that would apply to the water supplier
if all its connections excluded pursuant to the alternative
water and treatment exclusions were counted as connections.
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and bathing at that connection is centrally
treated 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 primacy
agency should request that the supplier
submit information and documentation
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
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. As
the alternative treatment provision explicitly
states that the user may provide the
treatment, the supplier may choose but is not
required to put the treatment in place, operate
it or contract for these services itself.
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
is responsible for ensuring that the alternative
treatment is in place and remains effective to
enable the primacy agency to make the
necessary determination. For example, where
users have already put alternative treatment
in place and a supplier desires to continue
this approach (that is, desires not to be
involved itself in providing the alternative
treatment), the supplier must provide
adequate information to the primacy agency
regarding the nature of the alternative
treatment devices in place, including the
level of health protection provided by these
devices, and the existence of users'
maintenance contracts that will ensure
continued attainment of the required level of
health protection.
///. The Exclusion in Section 1401(4)(B)(ii)
for Certain Piped Irrigation Districts
All piped water systems providing water
for human consumption to at least fifteen
service connections or twenty-five regularly
served individuals were defined as PWSs
subject to SDWA regulation prior to the 1996
amendments. The amendments, however,
provide a new exclusion for a specified
group of these PWSs. Section 1401(4)(B)(ii)
provides:
An irrigation district in existence prior to May
18, 1994, that provides primarily agricultural
service through a piped water system with only
incidental residential or similar use shall not be
considered to be a public water system if the system
or the residential or similar users of the system
comply with subclause (II) or (III) of clause (i).
The exclusion provisions for qualifying
piped irrigation districts were effective
immediately upon passage of the 1996
amendments, in contrast with the expanded
definition of public water system in Section
1401(4) as applied to constructed conveyance
systems, which became effective on August
6, 1998.
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 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 contrastto 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 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.
As with constructed conveyances, EPA
and the primacy States should recognize that
irrigation districts that make a serious effort
to comply with the exclusions may
nonetheless have a few users who refuse to
cooperate.
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WSG 112
Questions & 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 to
how many of their users they are providing
water for human consumption. EPA further
recommends that primacy agencies suggest
that the suppliers undertake reasonable
actions (e.g., surveys of 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
reasonably base their conclusions about a
user's 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. However, when
other evidence is available to the supplier,
such as the lack of potable ground water in
the area, empty water bottles awaiting
pick-up, observations by company personnel,
or patterns of water use at that connection,
and such evidence indicates that human
consumption of the water provided by the
supplier is probable, such a survey should not
be treated as conclusive.
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, in cases where the water supplier
is delivering water that the suppliers knows
or should know is being used for human
consumption.
Q4: 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?
A4: 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).
Q5: 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.?
A5: 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
140 1(4)(A), may use the exclusions available
under Section 140 l(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 1 401 (4)(B)(ii) provides a separate
exclusion to a specified group of piped
irrigation districts, as discussed in Section III
above.
Q6: 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 SD WA-complying water only
to these 1 5 connections or to all of its
connections?
A6: The water supplier is under an
obligation to supply SDWA- complying
water only to the 15 connections.
Q7: 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 to at least fifteen service
connections or twenty-five regularly served
individuals considered to be a public water
system if only some of its connections for
human consumption are provided with
alternative water or alternative treatment in
accordance with subclause (II) or (III) of
clause (i)?
A7: Yes. All connections to this kind of
public water system using the water for
human consumption must comply with
subclause (II) or (III) of clause (i) before the
supplier will not be considered a public water
system.
Q8: Is the irrigation district described in
Question 7 above under an obligation to
comply fully with SDWA with regard to just
the connections for human consumption that
are not provided with alternative water or
alternative treatment or to all of its
connections using water for human
consumption?
AS: 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.
Q9: What financial options are available to
water suppliers that were 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)?
A9: 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.
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WSG 112
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. Sec. 300f(4))
[FR Doc. 98-20904 Filed 8-4-98; 8:45 am]
BILLING CODE 6560-50-P
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