[Federal Register Volume 63, Number 89 (Friday, May 8, 1998)]
[Notices]
[Pages 25740-25746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12307]



[[Page 25739]]

_______________________________________________________________________

Part VI





Environmental Protection Agency





_______________________________________________________________________



Definition of a Public Water System in SDWA Section 1401(4) as Amended 
by the 1996 SDWA Amendment; Notice

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

[[Page 25740]]



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.

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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comments on the draft guidance ``Definition of a Public Water System in 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draft guidance is published as an Appendix to this notice.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 
<a href="/cdn-cgi/l/email-protection#6c01091e070009420603022c091c0d010d050042091c0d420b031a"><span class="__cf_email__" data-cfemail="264b43544d4a43084c4948664356474b474f4a0843564708414950">[email protected]</span></a>. 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    This notice publishes draft guidance which is intended to interpret 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

[[Page 25741]]

    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 
<SUP>1</SUP> 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)).
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    \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.
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    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 <SUP>2</SUP> expands the definition of a PWS to read as 
follows:

    \2\ All references in this Guidance to section 1401 refer to 
section 1401 of the SDWA.
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    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 <SUP>3</SUP> 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'').
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    \3\ As used in this Guidance, and as indicated in section 
1401(4)(C), the term water supplier broadly refers to any water 
provider that may be subject to regulation as a public water system 
under the SDWA. This term should not be confused with supplier of 
water, which is defined in the SDWA as ``any person who owns or 
operates a public water system''. See SDWA Section 1401(7).
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    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

[[Page 25742]]

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.<SUP>4</SUP>
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    \4\ One or more of these water delivery methods may under 
certain circumstances be considered public water systems under 
existing interpretations of other parts of the definition of a 
public water system.
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    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,

[[Page 25743]]

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.<SUP>5</SUP>
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    \5\ The three exclusions above do not otherwise affect the 
manner in which primacy agencies have defined a connection for the 
purposes of the SDWA.
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    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).<SUP>6</SUP>
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    \6\ 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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    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

[[Page 25744]]

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 
<SUP>7</SUP> 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.
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    \7\ However, a system that centrally treats water for 15 or more 
connections or 25 or more individuals is itself a public water 
system and subject to the NPDWRs.
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    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.<SUP>8</SUP> 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.
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    \8\ See footnote 5.
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    The words ``equivalent level of public health protection'' are 
meant to distinguish the situation of providers covered by this section 
from the situation of public water systems which must comply with all 
relevant aspects of the applicable regulations, including sampling and 
testing requirements and sometimes details of treatment. For example, a 
point-of-entry treatment device for filtration and disinfection might 
not comply with all requirements of relevant drinking water rules for 
monitoring, extent of surveillance of the disinfection process, and so 
forth. But, it would meet the ``equivalent level of public health 
protection'' requirement of this section if the quality of the water it 
produces is similar to that from central filtration and disinfection. 
Thus, this requirement is a performance standard providing that the 
quality of the water that affected residential users get should be 
similar to that from central treatment.
    As stated in section 1401(4)(B)(i)(III), treatment may be provided 
by the water supplier seeking to qualify for the exclusion, by a pass-
through entity, or by the user. However, because the exclusion cannot 
be granted unless the treatment actually provides an equivalent level 
of public health protection, as a practical matter the supplier will 
need to be responsible for ensuring that this is the case to enable the 
primacy agency to make the necessary determination.

III. The Exclusion in Section 1401(4)(B)(ii) for Certain Piped 
Irrigation Districts

    All piped water systems providing water for human consumption to at 
least fifteen service connections or twenty-five regularly served 
individuals were defined as PWSs subject to 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

[[Page 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?

[[Page 25746]]

    A7: The water supplier is under an obligation to supply SDWA-
complying water only to the 15 connections.
    Q8: Is an irrigation district in existence prior to May 18, 1994, 
that provides primarily agricultural service through a piped water 
system with only incidental residential or similar use considered to be 
a public water system if just one connection fails to comply with 
subclause (II) or (III) of clause (i)?
    A8: Yes. All connections to this kind of public water system must 
comply with subclause (II) or (III) of clause (i) before the supplier 
will not be considered a public water system.
    Q9: In the example immediately above, is the irrigation district 
under an obligation to comply fully with SDWA with regard to just the 
one connection described or to all of its connections?
    A9: The water supplier must comply fully with SDWA with regard to 
all of the connections to the public water system using water for human 
consumption.
    Q10: What financial options are available to water suppliers that 
will be newly defined as PWSs as of August 6, 1998 under the expanded 
definition of PWS in section 1401(4) and to suppliers that wish to make 
use of the exclusions in section 1401(4)(B)?
    A10: There are various financial options available to those water 
suppliers. First, public water systems are eligible for Drinking Water 
State Revolving Fund loans--with subsidies available to disadvantaged 
communities. Even those water suppliers that wish to exclude 
connections through use of point-of-entry treatment or central 
treatment pursuant to section 1401(4)(B)(i)(III) are eligible for these 
loans to provide such treatment. In addition, some communities known as 
``colonias'' may be eligible for assistance through federal grants to 
border States intended to provide assistance to such communities to 
facilitate compliance with SDWA requirements, although such grant 
funding has not previously been appropriated for this purpose. Finally, 
water suppliers providing alternative treatment have all the financial 
options regarding amortization and charging costs to users they would 
have for any other capital investment.

Disclaimer

    This document provides guidance to EPA Regions and States 
exercising primary enforcement responsibility under the SDWA concerning 
how EPA interprets the amended definition of public water system under 
the SDWA. It also provides guidance to the public and the regulated 
community on how EPA intends to exercise its discretion in implementing 
the statute and regulations defining public water system. The guidance 
is designed to implement national policy on these issues. The document 
does not, however, substitute for the SDWA or EPA's regulations, nor is 
it a regulation itself. Thus, it cannot impose legally-binding 
requirements on EPA, States, or the regulated community, and may not 
apply to a particular situation based upon the circumstances. EPA and 
State decisionmakers retain the discretion to adopt approaches that 
differ from this guidance on a case-by-case basis where appropriate. 
EPA may change this guidance in the future.

(Authority: 42 U.S.C. 300f(4))

[FR Doc. 98-12307 Filed 5-7-98; 8:45 am]
BILLING CODE 6560-50-P


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