25740 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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comments on the draft guidance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draft guidance is published as an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This notice publishes draft guidance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

(III).

The statutory language is ambiguous

as to whether all connections to the

system used for human consumption

must comply with this provision, or

whether only as many connections for

human consumption must comply so as

to reduce the remaining number of

connections to fewer than fifteen.

The draft guidance would require all

connections to the irrigation district that

use the district’s water for human

consumption to comply with the

alternative water or treatment

exclusions. More of the States on the

workgroup that commented on this

question preferred the approach taken

in this draft guidance over the approach

discussed below as an alternative.

EPA’s interpretation of this provision

is based on the realities that these piped

districts were already considered PWSs

under the pre-1996 definition, that the

only change in the status of these piped

irrigation districts in the 1996 SDWA

Amendments was to provide them an

opportunity to use these exclusions to

remove themselves from PWS status,

that this opportunity is not available to

any other types of piped water systems,

and that compliance with these

exclusions is much simpler and less

costly than the compliance required of

PWSs with the entire SDWA (which can

be avoided by appropriate use of the

exclusions). Under these circumstances,

EPA believes that the approach taken in

the draft guidance is equitable and

appropriate and protective of public

health.

The approach taken in the draft

guidance is supported by Report 104–

169 of the Senate Environment and

Public Works Committee on S. 1316,

which states that ‘‘[t]hese piped

(irrigation) systems are not to be

considered public water systems if all of

the connections to the system comply

with the requirements applicable under

one or the other of the exclusions for

alternative water or point-of-entry

treatment.’’ (p. 89, emphasis added).

The irrigation district provision enacted

in the SDWA Amendments is identical

to the one first adopted in S. 1316 by the

Senate Committee.

Finally, this approach provides an

incentive to piped irrigation districts to

give equal protection to all their

connections for human consumption.

This would prevent situations from

arising where some users could receive

untreated water while users at the

excluded connections receive water that

meets the requirements of the exclusion,

i.e. it meets the equivalent level of

protection provided by the applicable

national primary drinking water

regulations (NPDWRs). EPA believes

that the support of the majority of the

workgroup States that expressed an

opinion on this point indicates that they

intend to apply it in a way that would

avoid unfairness to irrigation districts

which seek in good faith to comply with

the exclusions, but are prevented from

applying them to all connections

because a few users refuse to allow the

use of the exclusions for their water

supply.

EPA and the workgroup considered

an alternative approach, which would

allow qualifying irrigation districts to

use the same method of counting or

excluding connections as suppliers of

water through constructed conveyances.

Specifically, they could remove

themselves from PWS status by

reducing the number of counted

connections to fewer than 15. This

alternative approach would prevent any

possibility of unfairness to irrigation

districts that seek in good faith to

comply with the exclusions but find

that a few users refuse to allow the

system to take the actions necessary to

qualify for the exclusions for their water

supply.

If after receiving comments on these

two approaches, EPA decides to revise

the guidance to take the alternative

approach, then questions and answers 8

and 9 in the Questions and Answers

section of the guidance would be

modified or deleted to reflect this

decision.

Dated: May 5, 1998.

Robert Perciasepe,

Assistant Administrator for Water.

Appendix—Draft Guidance on

Implementation of Amended Public Water

System Definition

Table of Contents

Introduction

Background

Application of Section 1401(4)

I. Systems Newly Defined As Public Water

Systems

A. Statutory Language
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 25741

1Primacy 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.

2All references in this Guidance to section 1401

refer to section 1401 of the SDWA.

3As 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).

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 1 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

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
25742 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

4One 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.

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.

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,
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 25743

5The three exclusions above do not otherwise

affect the manner in which primacy agencies have

defined a connection for the purposes of the SDWA.

6Applicable 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.

SDWA Section 1414 continues to

authorize EPA to bring an enforcement

action against a system to support the

position that the system is a PWS.

If a water supplier provides water for

human consumption through

constructed conveyances other than

pipes to at least twenty-five individuals

or fifteen connections at any time on or

after August 6, 1998, the supplier will

be considered a PWS. Such a supplier

may avoid regulation as a PWS only if

it qualifies for the exclusions provided

in section 1401(4)(B)(i) and thereby

reduces its ‘‘connections’’ to fewer than

fifteen connections regularly serving

fewer than twenty-five individuals.

Information gathered in suppliers’

surveys will aid the suppliers in

deciding whether they may qualify for

or should apply to the primacy agency

for these exclusions, and in

documenting their case for any such

exclusions. The exclusions are

described in detail in Section II below.

II. The Exclusions in Section

1401(4)(B)(i)

A. Statutory Language

Section 1401(4)(B)(i) provides limited

exclusions to the ‘‘connection’’

component of the PWS definition to

systems that deliver water through

constructed conveyances other than

pipes. These exclusions are not

available to piped water systems, with

the exception of certain piped irrigation

districts described in section

1401(4)(B)(ii) and discussed in section

III, below.

Specifically, Section 1401(4)(B)(i)

provides that a connection to a system

that delivers water through constructed

conveyances other than pipes is

excluded from consideration as a

‘‘connection’’ for purposes of section

1401(4)(A) under three circumstances:

(1) Where the water is used

exclusively for purposes other than

residential uses (consisting of drinking,

bathing, and cooking, or other similar

uses);

(2) Where EPA or the State (where the

State has primary enforcement

responsibility for PWSs) determines that

alternative water to achieve the

equivalent level of public health

protection provided by the applicable

national primary drinking water

regulations is provided for drinking and

cooking;

(3) Where EPA or the State (where the

State has primary enforcement

responsibility for PWSs) determines that

the water provided for drinking,

cooking, and bathing is treated

(centrally or by point of entry) by the

provider, a pass-through entity, or the

user to achieve the equivalent level of

protection provided by the applicable

national primary drinking water

regulations.

If the application of one or more of

these exclusions reduces the

‘‘connections’’ of a system providing

water for human consumption (through

constructed conveyances other than

pipes) to fewer than fifteen service

connections that serve fewer than

twenty-five individuals, the supplier’s

water system is not a PWS regulated

under the SDWA.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

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
25744 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

7However, 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.

8See footnote 5.

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

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 pointof-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 twentyfive regularly served individuals were

defined as PWSs subject to SDWA

regulation prior to the 1996

amendments. The amendments,

however, provide a new exclusion for a

specified group of these PWSs. Section

1401(4)(B)(ii) provides:

An irrigation district in existence

prior to May 18, 1994, that provides

primarily agricultural service through a

piped water system with only incidental

residential or similar use shall not be

considered to be a public water system

if the system or the residential or similar

users of the system comply with

subclause (II) or (III) of clause (i).

The exclusion provisions for

qualifying piped irrigation districts were

effective immediately upon passage of

the 1996 amendments, in contrast with

the expanded definition of public water

system in section 1401(4) as applied to

constructed conveyance systems, which

becomes effective on August 6, 1998.

An irrigation district referred to in

section 1401(4)(B)(ii) that would

otherwise be defined as a PWS may

avoid regulation as a PWS only if the

primacy agency determines that all

connections to the district that use the

district’s water for human consumption

comply with subclause (II) or (III) of

section 1401(4)(B)(i). In contrast to

systems providing water through

constructed conveyances, these districts

cannot avoid regulation as a PWS by

simply ‘‘reducing connections’’ to fewer

than fifteen connections serving fewer

than twenty-five individuals by

application of the exclusions in

subclauses (II) and (III).

Only those irrigation districts that

existed prior to May 18, 1994, and

which provide primarily agricultural

service through piped water systems

with only incidental residential or

similar use, are eligible to apply for

these exclusions. The agricultural

exclusion is available for commercial

agriculture only. Incidental residential

or similar use refers to human

consumptive uses that are closely and

functionally related to the primary

agricultural service provided by the

irrigation district. For example, the use

of water for human consumption by the

residents of a farmhouse working on

agricultural property, from a connection

used primarily for irrigation of that

property, is incidental to the primarily
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 25745

agricultural use of the water. Similarly,

human consumptive use by

farmworkers residing on agricultural

property is incidental to the primary

agricultural service provided to that

property by the district. In contrast, the

use of water for human consumption

from a connection to an irrigation

district’s pipe by a cluster of homes in

a subdivision is not ‘‘incidental’’ to the

district’s primary agricultural service. If

the character of the irrigation district’s

service changes so that the district no

longer provides primarily commercial

agricultural service with only incidental

residential or similar use, the district

would no longer qualify for this

exclusion.

Questions and Answers

Q1: How can primacy agencies

identify water suppliers that may be

newly defined as public water systems

under the revised definition of public

water system in section 1401(4)?

A1: Primacy agencies will likely

benefit by tapping into the knowledge

base of their inspectors, following up on

citizen water quality complaints in

irrigation and mining areas and

developing inventories of irrigation and

other constructed conveyance water

suppliers. State agriculture departments,

mining regulatory agencies and water

resource departments can help develop

these inventories. EPA recommends that

the primacy agency send a letter to

possible new PWSs informing them of

the requirements of the 1996

amendments, the systems’ potential

SDWA responsibilities, and the systems’

responsibility to determine whether and

how many of their users are using their

water for human consumption. EPA

further recommends that primacy

agencies suggest that the suppliers

undertake any necessary actions (e.g., a

survey of any water users that might be

using the water for human

consumption) to ascertain their users’

water use patterns. Primacy agencies

may wish to request that water suppliers

providing water through constructed

conveyances other than pipes provide

them with annual, affirmative

documentation such as affidavits or

other certifications identifying the

connections and users to whom they

serve water, and identifying the

connections and users using their water

for human consumption and residential

uses. This would be a means for

primacy agencies to verify suppliers’

documentation of the number of

connections using their water for human

consumption.

Q2: Because most water suppliers

cannot inspect the interiors of their

users’ premises, on what evidence

should the suppliers base their

conclusions about their users’ water

use?

A2: A survey of users by the supplier

that includes affirmative documentation

as to the types of uses made of the water

would be sufficient in most cases. The

supplier should look to evidence that

may be available such as the likely

availability of potable ground water in

the area, empty water bottles awaiting

pick-up, observations by company

personnel and patterns of water use at

that connection that indicate whether

human consumption of the water

provided by the supplier is probable.

Q3: Some water suppliers have

warned their users that their water is

nonpotable or is not for human

consumption without treatment. Some

have offered the water for sale only on

the condition that it will not be used for

human consumption. Other suppliers

have required their users to sign

statements that the water will not be

used for human consumption or that the

supplier is not liable (and the user

assumes the risks) if the water is used

domestically. If, nevertheless, a user

uses water for human consumption in

the face of these or similar conditions,

must the water supplier count the user

as a connection for the purposes of

section 1401(4)?

A3: Yes. The controlling element here

is whether the water supplier is

delivering water that the supplier knows

or should know is being used for human

consumption.

Q4: There are several kinds of

nonpaying water users. Some water

suppliers are plagued by ‘‘midnight’’ or

transient water thieves who take water

for a very short period of time. Their

identities are usually unknown. Other

nonpaying users are found to have taken

water surreptitiously for a longer period

but still without the permission of the

supplier. A third group consists of

nonpaying users who have taken water

openly for a considerable length of time

with the knowledge but without the

consent of the supplier. Some users

have continued taking water directly

from canals or ditches with buckets and

other containers after their pump/

siphon intakes were eliminated by the

supplier. Which of these users are

counted as ‘‘connections’’ within the

meaning of section 1401(4)?

A4: The primacy agency should look

at the totality of the relationship

between the water supplier and the

nonpaying user to determine if the

relationship is of sufficient strength to

constitute a ‘‘connection’’ or

‘‘individual served’’ by the system. The

supplier’s knowledge of water

withdrawals and the permanency of the

withdrawals is more important in this

relationship than the payment of fees.

The supplier is expected to monitor its

operation as a regular part of its

business and to be aware of water

withdrawals. If the water supplier

knows or reasonably should know of the

taking of the water, there is probably a

connection within the meaning of

section 1401(4).

Q5: Where a water supplier provides

water for human consumption through

pipes or other constructed conveyances,

does the geographic isolation of that

water supplier’s users affect whether

such users are counted as connections

or individuals served by the supplier?

A5: No. All water users to whom the

water supplier provides water for

human consumption are counted as

connections or individuals served by

the supplier regardless of their

geographic isolation from other users,

unless such connections are otherwise

excluded pursuant to section 1401(4)(B).

Q6: Are the exclusions in section

1401(4)(B)(i) available to a water

supplier that operates a system that

consists primarily of non-piped

constructed conveyances, but which

includes some limited ‘‘piping’’ such as

siphons to pass under roads or washes,

short tunnels through hills, etc.?

A6: Yes, assuming the exclusion

criteria apply. Only those suppliers that

convey water by means other than

pipes, and which are newly defined as

public water systems under the

expanded definition in section

1401(4)(A), may use the exclusions

available under section 1401(4)(B)(i) to

avoid regulation as a public water

system. Suppliers whose piping consists

only of the limited piping described

above are not considered to convey

water by pipes. A primacy agency

should not make a determination that a

supplier is a piped water system, either

as to specific connections or entirely, if

it would not have been able to do so

under SDWA prior to the changes

enacted to section 1401(4). It should be

noted that section 1401(4)(B)(ii)

provides a separate exclusion to a

specified group of piped irrigation

districts, as discussed in Section III

above.

Q7: If a water supplier delivers water

for human consumption through a

constructed conveyance other than a

pipe and reduces its number of

countable connections through the

operation of 1401(4)(B)(i) to 15

connections using water for human

consumption does it have to supply

SDWA-complying water only to these

15 connections or to all of its

connections?
25746 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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-ofentry 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 legallybinding 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