41940 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices

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.

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6136–7]

Definition of a Public Water System in

SDWA Section 1401(4) as Amended by

the 1996 SDWA Amendments

AGENCY: Environmental Protection

Agency.

ACTION: Notice.

SUMMARY: The U.S. Environmental

Protection Agency (EPA) is announcing

issuance of guidance on ‘‘Definition of

a Public Water System in SDWA Section

1401(4) as Amended by the 1996 SDWA

Amendments.’’ The guidance is

published as an Appendix to this notice.

FOR FURTHER INFORMATION CONTACT: The

Safe Drinking Water Hotline, toll free

(800) 426–4791, or Jon Merkle,

telephone (415) 744–1844.

SUPPLEMENTARY INFORMATION:

Background

The definition of a ‘‘public water

system’’ (PWS) is central to delineating

the scope of many Safe Drinking Water

Act (SDWA) requirements. The 1996

amendments to the SDWA broadened

the definition of ‘‘public water system’’

to include systems providing water for

human consumption that deliver this

water by ‘‘constructed conveyances’’,

such as irrigation canals. Prior to the

1996 amendments, the SDWA defined

the term public water system to include

only piped water systems. The guidance

published today is intended to interpret

the new statutory language and provide

guidance on this interpretation and

suggested implementation to EPA

Regions and States with primary

enforcement responsibility for the PWS

program.

The Agency published a draft of this

guidance in the Federal Register on

May 8, 1998. The Agency solicited

comments on the draft guidance and,

after consideration of numerous

comments on the draft guidance, the

Agency prepared the final guidance

which is being published today. EPA

has prepared a detailed response to

comment document, which is available

upon request and which will be posted

on EPA’s Office of Ground Water and

Drinking Water Homepage, which can

be accessed at www.epa.gov/ogwdw.

Dated: July 31, 1998.

J. Charles Fox,

Acting Assistant Administrator for Water.

Appendix—Definition of a Public Water

System in SDWA Section 1401(4) as

Amended by the 1996 SDWA

Amendments

Table of Contents

Introduction

Background

Application of Section 1401(4)

I. Systems Newly Defined As Public Water

Systems

A. Statutory Language

B. Interpretation of ‘‘Constructed

Conveyance’’

C. Identification of Public Water Systems

Under the Revised Definition

II. The Exclusions in Section 1401(4)(B)(i)

A. Statutory Language

B. Application of Section 1401(4)(B)(i)

1. The ‘‘Other Than Residential Uses’’

Exclusion

2. The Alternative Water and Treatment

Exclusions

The Alternative Water Exclusion

The Treatment Exclusion

III. The Exclusion in Section 1401(4)(B)(ii)

for Certain Piped Irrigation 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 its

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

the SDWA ‘‘water [provided] for human

consumption through pipes or other

constructed conveyances.’’ This change

reflected Congress’ understanding that

the human consumption of such

untreated canal water could constitute a

significant risk to public health, and

that appropriate measures were

warranted to provide consumers of this

water with a level of health protection

equivalent to that from drinking water

standards. At the same time, Congress

provided several means by which

certain water suppliers could be

excluded from this definition, and

provided that systems newly subject to

SDWA regulation under this amended

definition would not be regulated until

August 6, 1998.

The amended Section 1401(4) does

several things. First, effective August 6,

1998, Section 1401(4)(A) expanded the

definition of a PWS to include suppliers

of water for human consumption that

deliver their water through canals and

other constructed conveyances. Second,

Section 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 as a

consequence of such actions, the

systems are no longer regarded as

serving at least 15 service connections

or 25 individuals, the systems will not

be considered to be PWSs. Third,

Section 1401(4)(B)(ii) also allows certain

piped irrigation districts to no longer be

considered public water systems if the

districts or their users take specific

actions to ensure public health.

As promised in the December 6, 1996

guidance, EPA convened an EPA-State

work group to develop more detail on

the interpretation and application of

this new definition. State members of

this work group included drinking

water program representatives for

Arizona, California, Georgia, Idaho,

Texas and Washington. The work group

consulted with thirteen individual

irrigation water suppliers and irrigation

trade associations within these States.
Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices 41941

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).

4EPA interprets the term ‘‘bathing’’ to mean use

of water for personal hygiene purposes in a home,

business setting, school, etc. The term ‘‘bathing’’

does not refer to situations such as (1) swimming

in an open canal or (2) incidental, casual contact

with water from an open canal in connection with

outdoor activities such as agricultural work, canal

maintenance, or lawn and garden care.

5One or more of these water delivery methods

may under certain circumstances be considered

public water systems under existing interpretations

of other parts of the definition of a public water

system.

The workgroup also consulted with six

organizations involved with

community-based minority health and

welfare issues and interviewed three

persons who use canal water for human

consumption. EPA published a draft of

the guidance on May 8, 1998 (see 63 FR

25740–46), considered public comments

on the draft, and made changes based on

the public comments.

Application of Section 1401(4)

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 expanded 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 are 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, 4 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’’).

Under the final rule published in the

Federal Register on April 28, 1998 (63

FR 23362, at 23367), states were given

two years from the date of publication

to adopt the new statutory definition of

public water system quoted above, or a

more stringent definition, in order to

obtain or maintain primacy.

B. Interpretation of ‘‘Constructed

Conveyance’’

As of August 6, 1998, systems that

deliver water for human consumption

through constructed conveyances other

than pipes to the requisite number of

connections and/or individuals are

defined as PWSs subject to SDWA

regulation. The term constructed

conveyance is not limited by the SDWA

as to the size of the conveyance or the

character of the delivery system. The

term refers broadly to any manmade

conduit such as ditches, culverts,

waterways, flumes, mine drains or

canals. The term constructed

conveyance does not include water that

is delivered by bottle, other package

unit, vending machine or cooler, nor

does it include water that is trucked or

delivered by a similar vehicle.5

Water bodies or waterways that occur

naturally but which are altered by

humans may, in some cases, be

constructed conveyances. Whether a

particular water body or waterway is a

constructed conveyance for purposes of

Section 1401(4) depends on the totality

of facts that characterize whether the

water body or waterway is essentially a

natural water body or waterway, or

whether it is essentially a manmade

conduit. The primacy agency should use

the following factors to decide whether

a particular water body is a constructed

conveyance. Specifically, the primacy

agency should first decide whether a

water body is manmade, or

‘‘constructed,’’ by determining whether

or not it exists in its current

configuration substantially from human

modification where activities such as

mining, dredging, channelization, or

bed or bank modification are of an

appropriate magnitude to change the

character of the water body. Second, the

primacy agency should determine

whether the water body is a conduit, or

‘‘conveyance,’’ by examining who owns

or controls the water and the reason

why water is present: whether it is

present perennially through natural

precipitation and runoff or discharge of

natural springs, or whether its flow is

present primarily by human means and

in order to convey the water to users as

part of a network under the management

of the water supplier. If a particular

water body is both ‘‘constructed’’ and a

‘‘conveyance’’ based on the factors

described above, at least as to particular

users whose status as ‘‘connections’’ is

in question, the water body is a

constructed conveyance.

Primacy agencies should also

determine whether to consider as part of

a public water system, those natural

waterway portions of a water delivery

system composed in part of constructed

conveyances.

While irrigation-related entities and

their canals are likely to be the most

common systems newly defined as

PWSs under the expanded definition in

Section 1401(4), mining and other

industrial entities that convey water

may also fit within the definition if their

water is used for human consumption.

C. Identification of Public Water

Systems Under the Revised Definition

Primacy agencies should examine

their areas of jurisdiction to determine

if there are any water suppliers

providing water through constructed

conveyances for human consumption

that meet the new public water system

definition.

The addition of ‘‘constructed

conveyances’’ to the definition of a

public water system presents new

questions about how to apply two key,

existing components of the definition to

water suppliers using constructed

conveyances. A detailed discussion of

these two components is provided

below.

Providing Water. The first component

is whether the supplier is ‘‘providing’’

water within the meaning of Section

1401(4). New questions about this

component arise because use of water

from open conveyances may be less

apparent than from piped systems.

Thus, it is important to clarify those

conditions under which a supplier of

water through constructed conveyances

would be considered to have

‘‘provided’’ certain users with water.

In describing a public water system,

EPA’s regulations and guidance use

such terms as ‘‘serves’’ and ‘‘delivers’’—

often though not always in the context

of ‘‘customers’’ (see, e.g., 40 CFR

§ 141.2). For the supplier to be

providing water to users, there must be

an explicit or implied arrangement or

agreement of some kind between a

supplier and individuals using water. A
41942 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices

contractual, operating or service

arrangement is the most obvious

example of an explicit agreement or

arrangement to provide water.

Where the existence of an explicit

arrangement or agreement is not obvious

from the facts, the primacy agency

should decide whether or not there is an

implicit arrangement or agreement

based on two factors: whether the

supplier knows or should know that the

water is being taken, and whether the

supplier has consented to it being taken.

A supplier that takes actions that a

property owner would ordinarily take to

maintain his or her property rights

against unauthorized diversions should

be able to demonstrate that there is no

implied arrangement or agreement to

‘‘provide’’ water. A supplier would not

be expected to go beyond its normal

inspections or operation of water

conveyances to discover unauthorized

diversions, or to do more than those

actions typically used to maintain rights

against the adverse possession of

interlopers to show lack of consent.

Human Consumption. The second key

component of the definition, which is

distinct from the component as to

whether a supplier is ‘‘providing’’

water, is whether water is being used for

‘‘human consumption.’’ Whether a

water system is supplying water through

constructed conveyances to a

connection for human consumption

should be determined by whether the

water supplier knows or should know

that users at that connection are using

the supplier’s water for human

consumption. In Midway Heights, the

court held that the county water district

either knew or should have known to a

substantial certainty that individuals

were using the district’s water for

human consumption based on the

locations and arrangements of the pipes

and plumbing, the fact that a pipe ran

from the system into a number of

homes, and a specific provision in an

agreement between the water district

and the users instructing the users to

make the water potable before using it

for human consumption. The court

further found that a ‘‘waiver’’ agreement

between the water district and the users

that purported to limit the use of the

district’s water to irrigation was

ineffective to remove the water system’s

liability under the SDWA. Likewise,

EPA does not consider a waiver signed

by water users stating that they must not

use or are not using water for human

consumption to preclude the water

supplier from being considered a PWS

when the system knows or should know

that it is supplying water for human

consumption to at least fifteen

connections or an average of twenty-five

regularly served individuals.

In order for water suppliers to

ascertain whether they may be defined

as PWSs under the revised definition,

the suppliers should undertake

reasonable actions within their

authority to ascertain their users’ water

use patterns (e.g., surveys of any water

users that might be using the water for

human consumption). Water suppliers

that make reasonable efforts to identify

which of their users are using their

water for human consumption will have

identified all users for human

consumption that they ‘‘should know’’

to exist, in accordance with the Midway

Heights standard. While water suppliers

should take the initiative to assess and

characterize their water use situations to

the primacy agency as a core element of

such surveys, such suppliers can also

offer their users the opportunity to

describe their water use situations to the

supplier. Suppliers should determine

from users that might be using 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 reasonable actions to document

water use patterns, water suppliers need

to consider other available information

that indicates that their users are in fact

using the water for human

consumption. As stated above, where a

water supplier knows or should know

that the requisite number of connections

and/or individuals are using water it

supplies for human consumption, the

primacy State or EPA will consider the

system to be a PWS. The results of any

survey and other available information

should provide a basis for ascertaining

whether a water supplier has at least

fifteen service connections or regularly

serves at least twenty-five individuals

and would therefore be considered a

PWS. EPA or the primacy State may

wish to request documented evidence of

the suppliers’ reasonable efforts to

ascertain these water uses. A supplier’s

failure to make a reasonable effort to

gather any necessary information and

provide sufficient documentation will

not excuse the supplier from liability

under the SDWA.

Primacy agencies should determine

what form of records they will need

from water suppliers to implement this

provision. In addition to surveys,

primacy agencies may want to consider

requiring suppliers to submit annual

affidavits documenting such

information as the number of

connections and users to whom they

serve water, the uses of that water, and

whether alternative water is supplied.

Primacy agencies should also determine

how often they will need updated

records and how suppliers should

maintain these records (e.g., schedule,

location, availability).

Pursuant to its regular oversight

responsibilities, EPA can review State

determinations of whether a system is a

PWS. If EPA has serious concerns with

the result of a State’s determination, it

will discuss these matters with the State

regarding a potential reconsideration of

the determination. In the event EPA

cannot resolve the matter with the State,

SDWA Section 1414 continues to

authorize EPA to bring an enforcement

action against a system which EPA

believes is a PWS.

Under amended Section 1401(4), if a

water supplier provides water for

human consumption through

constructed conveyances other than

pipes to at least twenty-five individuals

or fifteen connections at any time on or

after August 6, 1998, the supplier is

considered a PWS. Such a supplier may

avoid regulation as a PWS only if it

qualifies for the exclusions provided in

Section 1401(4)(B)(i) and thereby

reduces its ‘‘connections’’ to fewer than

fifteen connections regularly serving

fewer than twenty-five individuals.

Information gathered in suppliers’

surveys will aid the suppliers in

deciding whether they may qualify for

or should apply to the primacy agency

for these exclusions, and in

documenting their case for any such

exclusions. The exclusions are

described in detail in Section II below.

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
Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices 41943

6The three exclusions above do not otherwise

affect the manner in which primacy agencies have

defined a connection for the purposes of the SDWA.

7Applicable 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.

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.6

However, if the supplier’s remaining

connections number fifteen or more, or

if its remaining connections (even if

they number fewer than fifteen)

regularly serve at least twenty-five

individuals, then the system is a PWS,

although the excluded connections are

not considered part of the PWS for as

long as the exclusions apply and the

system complies with any conditions

governing their applicability.

B. Application of Section 1401(4)(B)(i)

1. The ‘‘Other Than Residential Uses’’

Exclusion. 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,

Section 1401(4)(B)(i)(I) applies to that

connection. An example of where this

exclusion would apply is when a user

obtains all water for drinking, bathing,

cooking, and similar uses from a private

well, while the supplier provides the

user with water for toilet flushing and/

or outside irrigation.

While this provision is referred to in

this guidance document as one of three

exclusions, it does not contain the

primacy agency determination process

that the other exclusions contain. This

provision simply clarifies that where

water being provided to a certain

connection is not being used ‘‘for

human consumption,’’ that connection

is not counted as a connection for

purposes of the definition of a PWS in

Section 1401(4).

2. The Alternative Water and

Treatment Exclusions. In contrast to the

‘‘other than residential uses’’ exclusion

described above, the ‘‘alternative water’’

and ‘‘alternative treatment’’ exclusions

enable the primacy agency to determine

that a water supplier that does meet the

definition of a PWS is providing

adequate health protection through the

means specified in Section

1401(4)(B)(i)(II) or (III), and thus should

not be regulated as a PWS.

The alternative water and alternative

treatment exclusions apply only after

the primacy agency has made the

determination that the supplier

complies with the exclusion criteria. If

the primacy agency provides the

supplier with a written determination

that the exclusions in Sections

1401(4)(B)(i)(II) and (III) apply, then an

eligible water supplier can reasonably

rely on those exclusions, as long as they

continue to be maintained in practice, to

avoid classification as a PWS subject to

the SDWA or to continue to provide

users 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 statute does not require the

supplier to provide alternative water to

meet the users’ bathing needs. The

exclusion does not apply to a

connection where the users, not the

supplier, provide alternative water for

drinking and cooking. Under the SDWA,

public water systems, rather than users,

are responsible for providing safe

drinking water absent an explicit

statutory provision to the contrary (as in

the alternative treatment exclusion,

discussed below).

The primacy agency must also make

the factual determination that the

alternative water provided for drinking

and cooking actually achieves the

equivalent level of public health

protection provided by applicable

NPDWRs.7 The primacy agency will

make this determination based on its

own criteria regarding which alternative

water sources, and which associated

documentation, operational, monitoring,

reporting or other requirements, achieve

the equivalent level of public health

protection provided by applicable

NPDWRs. The primacy agency should

not necessarily assume that all varieties

of bottled or hauled water will achieve

the requisite level of public health

protection absent information about the

source and quality of the water. Where

existing State regulations governing

bottled and/or hauled water provide the

equivalent level of public health

protection provided by applicable

NPDWRs, an alternative water

purveyor’s compliance with such

regulations would provide adequate

assurance that the alternative water

actually achieves the requisite level of

public health protection.

The water supplier may charge the

users for the cost of the water supplied.

The water supplier may also contract

with a third party to deliver the water

to the user, but in such case the supplier

remains responsible for ensuring that

the alternative water is provided to the

users.

The Treatment Exclusion. A water

supplier seeking to exclude a particular
41944 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices

8See footnote 7.

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 or treated at the point of entry

by the provider, a pass-through entity,

or the user. A pass-through entity is an

entity other than a water supplier

referred to in Section 1401(4)(B) or its

users that has been contractually

engaged by the water supplier or the

user to provide the treatment described

in Section 1401(4)(B)(i)(III). The

primacy agency should request that the

supplier submit information and

documentation demonstrating that

central treatment or a point-of-entry

treatment device is actually in use and

treating all water used for drinking,

cooking and bathing at that connection.

The primacy agency must also make

the factual determination that the

treated water actually achieves the

equivalent level of public health

protection provided by the applicable

NPDWRs.8 The primacy agency will

make this determination based on its

own criteria, which can include

appropriate, independent third party

(such as the National Sanitation

Foundation) certification or

performance verification, regarding

which types of treatment devices may

be used, and which associated

operational, monitoring, reporting or

other requirements are necessary, to

ensure that the provided water actually

achieves the equivalent level of public

health protection provided by

applicable NPDWRs. This third party

verification generally describes a range

of contamination levels in the raw

(untreated) water that the treatment

device can effectively address. Where

local variability of source water

conditions indicates a need—as where

the raw water is highly contaminated—

primacy agencies could choose to

require more site-specific pilot testing.

National third party performance

verification will still be helpful in such

cases as a guide to the water quality

parameters (levels of contamination)

that will (or will not) present problems

for technology performance with the

type of contaminant and treatment

process involved. EPA’s listing of 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. As the alternative treatment

provision explicitly states that the user

may provide the treatment, the supplier

may choose but is not required to put

the treatment in place, operate it or

contract for these services itself.

However, because the exclusion cannot

be granted unless the treatment actually

provides an equivalent level of public

health protection, as a practical matter

the supplier is responsible for ensuring

that the alternative treatment is in place

and remains effective to enable the

primacy agency to make the necessary

determination. For example, where

users have already put alternative

treatment in place and a supplier

desires to continue this approach (that

is, desires not to be involved itself in

providing the alternative treatment), the

supplier must provide adequate

information to the primacy agency

regarding the nature of the alternative

treatment devices in place, including

the level of health protection provided

by these devices, and the existence of

users’ maintenance contracts that will

ensure continued attainment of the

required level of health protection.

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

became effective on August 6, 1998.

An irrigation district referred to in

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

otherwise be defined as a PWS because

it provides water for human

consumption to at least fifteen

connections or twenty-five regularly

served individuals may avoid regulation

as a PWS only if the primacy agency

determines that all connections to the

district that use the district’s water for

human consumption comply with

subclause (II) or (III) of Section

1401(4)(B)(i). In 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

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
Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices 41945

district’s primary agricultural service. If

the character of the irrigation district’s

service changes so that the district no

longer provides primarily commercial

agricultural service with only incidental

residential or similar use, the district

would no longer qualify for this

exclusion.

As with constructed conveyances,

EPA and the primacy States should

recognize that irrigation districts that

make a serious effort to comply with the

exclusions may nonetheless have a few

users who refuse to cooperate.

Questions & 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

to how many of their users they are

providing water for human

consumption. EPA further recommends

that primacy agencies suggest that the

suppliers undertake reasonable actions

(e.g., surveys of water users that might

be using the water for human

consumption) to ascertain their users’

water use patterns. Primacy agencies

may wish to request that water suppliers

providing water through constructed

conveyances other than pipes provide

them with annual, affirmative

documentation such as affidavits or

other certifications identifying the

connections and users to whom they

serve water, and identifying the

connections and users using their water

for human consumption and residential

uses. This would be a means for

primacy agencies to verify suppliers’

documentation of the number of

connections using their water for human

consumption.

Q2: Because most water suppliers

cannot inspect the interiors of their

users’ premises, on what evidence

should the suppliers reasonably base

their conclusions about a user’s water

use?

A2: A survey of users by the supplier

that includes affirmative documentation

as to the types of uses made of the water

would be sufficient in most cases.

However, when other evidence is

available to the supplier, such as the

lack of potable ground water in the area,

empty water bottles awaiting pick-up,

observations by company personnel, or

patterns of water use at that connection,

and such evidence indicates that human

consumption of the water provided by

the supplier is probable, such a survey

should not be treated as conclusive.

Q3: Some water suppliers have

warned their users that their water is

nonpotable or is not for human

consumption without treatment. Some

have offered the water for sale only on

the condition that it will not be used for

human consumption. Other suppliers

have required their users to sign

statements that the water will not be

used for human consumption or that the

supplier is not liable (and the user

assumes the risks) if the water is used

domestically. If, nevertheless, a user

uses water for human consumption in

the face of these or similar conditions,

must the water supplier count the user

as a connection for the purposes of

Section 1401(4)?

A3: Yes, in cases where the water

supplier is delivering water that the

suppliers knows or should know is

being used for human consumption.

Q4: Where a water supplier provides

water for human consumption through

pipes or other constructed conveyances,

does the geographic isolation of that

water supplier’s users affect whether

such users are counted as connections

or individuals served by the supplier?

A4: No. All water users to whom the

water supplier provides water for

human consumption are counted as

connections or individuals served by

the supplier regardless of their

geographic isolation from other users,

unless such connections are otherwise

excluded pursuant to Section

1401(4)(B).

Q5: Are the exclusions in Section

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

supplier that operates a system that

consists primarily of non-piped

constructed conveyances, but which

includes some limited ‘‘piping’’ such as

siphons to pass under roads or washes,

short tunnels through hills, etc.?

A5: Yes, assuming the exclusion

criteria apply. Only those suppliers that

convey water by means other than

pipes, and which are newly defined as

public water systems under the

expanded definition in Section

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.

Q6: If a water supplier delivers water

for human consumption through a

constructed conveyance other than a

pipe and reduces its number of

countable connections through the

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

connections using water for human

consumption does it have to supply

SDWA-complying water only to these

15 connections or to all of its

connections?

A6: The water supplier is under an

obligation to supply SDWA-complying

water only to the 15 connections.

Q7: Is an irrigation district in

existence prior to May 18, 1994 that

provides primarily agricultural service

through a piped water system with only

incidental residential or similar use to at

least fifteen service connections or

twenty-five regularly served individuals

considered to be a public water system

if only some of its connections for

human consumption are provided with

alternative water or alternative

treatment in accordance with subclause

(II) or (III) of clause (i)?

A7: Yes. All connections to this kind

of public water system using the water

for human consumption must comply

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

before the supplier will not be

considered a public water system.

Q8: Is the irrigation district described

in Question 7 above under an obligation

to comply fully with SDWA with regard

to just the connections for human

consumption that are not provided with

alternative water or alternative

treatment or to all of its connections

using water for human consumption?

A8: The water supplier must comply

fully with SDWA with regard to all of

the connections to the public water

system using water for human

consumption.

Q9: What financial options are

available to water suppliers that were

newly defined as PWSs as of August 6,

1998 under the expanded definition of

PWS in Section 1401(4) and to suppliers

that wish to make use of the exclusions

in Section 1401(4)(B)?
41946 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 / Notices

A9: There are various financial

options available to those water

suppliers. First, public water systems

are eligible for Drinking Water State

Revolving Fund loans—with subsidies

available to disadvantaged

communities. Even those water

suppliers that wish to exclude

connections through use of point-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. 98–20904 Filed 8–4–98; 8:45 am]

BILLING CODE 6560–50–P