Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Released: 2011-01-31T00:00:00

Introduction

The Safe Drinking Water Act (SDWA) is the primary federal law for protecting public water supplies from harmful contaminants. First enacted in 1974, and broadly amended in 1986 and 1996, the SDWA is administered through programs that regulate contaminants in public water supplies, provide funding for infrastructure projects, protect underground sources of drinking water, and promote the capacity of water systems to comply with SDWA regulations.

The Environmental Protection Agency (EPA) is the federal agency responsible for administering SDWA; however, the 1974 law established a federal-state structure in which EPA may delegate primary enforcement and implementation authority (primacy) for drinking water programs to states and tribes. The state-administered Public Water Supply Supervision (PWSS) program remains the basic program for regulating public water systems, and EPA has delegated primacy for this program to all states, except Wyoming and the District of Columbia (which SDWA defines as a state). EPA has responsibility for implementing the PWSS program in these two jurisdictions and throughout most Indian lands. A second key portion of the act requires EPA to regulate the underground injection of wastes and other fluids to protect underground sources of drinking water from contamination. Primary enforcement authority for the underground injection control (UIC) program also may be delegated to the states. Thirty-three states have assumed primacy for the program, EPA has lead implementation and enforcement authority in 10 states, and program authority for different classes of injection wells is split in the remainder of the states.

Since the law was first enacted, much progress has been made in assuring the quality of public water supplies. EPA has regulated some 91 drinking water contaminants, and more regulations are pending. Despite this progress, drinking water safety concerns and challenges remain. According to EPA's 2006 National Public Water Systems Compliance Report, the number of public water systems reporting no violations of the health-based standards for 2006 was 93%, and 73% of the U.S. population was served by public water systems that had no reported significant violations. However, EPA estimated that states had submitted to the EPA database only 62% of violations of health-based standards and 29% of violations of monitoring and reporting requirements, thus increasing uncertainty as to the quality of water provided by many systems. EPA and the states have resolved some data quality and reporting problems, and efforts to address this issue continue. EPA and state compliance data indicate that water systems still incur tens of thousands of violations of SDWA requirements each year. Although these violations primarily involve monitoring and reporting requirements, they also include thousands of violations of standards and treatment techniques. Moreover, monitoring and reporting violations create uncertainty as to whether systems actually met the applicable health-based standards.

Also at issue is the rate at which EPA has been reviewing and updating existing contaminant regulations to respond to newer scientific information (e.g., chromium and trichloroethylene (TCE)) or to address implementation and compliance problems (e.g., the Lead and Copper Rule). Concern also exists over the potential health effects of drinking water contaminants for which standards have not been set, such as perchlorate and methyl tertiary butyl ether (MTBE). The act requires EPA to continually evaluate contaminants that may be candidates for regulation and to periodically review existing standards; however, EPA's perceived lack of action on specific contaminants of concern has generated criticism in Congress and elsewhere.

Last Major Reauthorization and Amendments

Congress last broadly revised the act with the Safe Drinking Water Act Amendments of 1996 ( P.L. 104-182 ). These changes resulted from a multi-year effort to amend a statute that was widely criticized as having too little flexibility, too many unfunded mandates, and an arduous but unfocused regulatory schedule. Among the key provisions, the 1996 amendments authorized a drinking water state revolving loan fund (DWSRF) program to help public water systems finance projects needed to comply with SDWA regulations. The amendments also established a process for selecting contaminants for regulation based on health risk and occurrence, gave EPA some added flexibility to consider costs and benefits in setting most new standards, and established schedules for regulating certain contaminants (e.g., arsenic, radon, and disinfection byproducts).

The 1996 law added several provisions aimed at building the capacity of water systems (especially small systems) to comply with SDWA regulations, and imposed many new requirements on the states. Among other provisions, the amendments required states to develop programs for source water assessment, operator certification and training, and compliance capacity development. The law also required community water systems to provide customers with annual "consumer confidence reports" that contain information on regulated contaminants found in the local drinking water. Appropriations for most SDWA programs were authorized through FY2003, and although most of the act's funding authorities have expired, broad reauthorization bills have not been proposed, as EPA, states, and public water systems remain focused on meeting the requirements of the 1996 amendments.

In 2002, Congress added drinking water security provisions to the SDWA through the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 ( P.L. 107-188 , Title IV). New SDWA section 1433 required community water systems serving more than 3,300 people to conduct vulnerability assessments and prepare emergency response plans. The law also required EPA to conduct research on preventing and responding to terrorist or other attacks. In the 111 th Congress, the House passed H.R. 2868 , the Chemical and Water Security Act of 2009, to direct the EPA Administrator to issue regulations establishing risk-based performance standards for covered water and wastewater utilities. The bill would have required covered systems to update vulnerability assessments, develop site security and emergency response plans, and possibly implement methods to reduce the consequences of a chemical release. This proposal was not reported in the Senate.

Regulated Public Water Systems

Federal drinking water regulations apply to some 154,879 privately and publicly owned water systems that provide piped water for human consumption to at least 15 service connections or that regularly serve at least 25 people. (The law does not apply to private residential wells.) Of these systems, 51,651 are community water systems (CWSs) that serve most people in the United States—a total residential population of roughly 294 million year-round. All SDWA regulations apply to these systems. Another 18,395 systems are non-transient, non-community water systems (NTNCWSs), such as schools or factories, that have their own water supply and serve the same people for more than six months but not year-round. Most drinking water requirements apply to these systems. Additionally, 83,484 systems are transient non-community water systems (TNCWSs) (e.g., campgrounds and gas stations) that provide their own water to transitory customers. TNCWSs generally are required to comply only with regulations for contaminants that pose immediate health risks (such as microbial contaminants), with the proviso that systems that use surface water sources must also comply with filtration and disinfection regulations.

Of the nearly 52,000 community water systems, roughly 83% serve 3,300 or fewer people. While large in number, these systems provide water to just 9% of the population served by all community systems. In contrast, 8% of community water systems serve more than 10,000 people, and they provide water to 82% of the population served. Fully 85% (15,619) of non-transient, non-community water systems and 97% (80,703) of transient noncommunity water systems serve 500 or fewer people. These statistics give some insight into the scope of financial, technological, and managerial challenges many public water systems face in meeting a growing number of complex federal drinking water regulations. Table 1 provides statistics for community water systems.

Safe Drinking Water Act Issues

Recent drinking water safety issues have included the gap between infrastructure funding needs and spending; the capacity of public water systems, especially small systems, to comply with a growing set of complex standards; and the contamination of water supplies by unregulated contaminants, such as perchlorate and various pharmaceuticals and personal care products. Issues involving the act's groundwater protection provisions include proposals for large-scale storage of carbon dioxide deep underground to mitigate greenhouse gas emissions, as well as the increased reliance on hydraulic fracturing to develop domestic oil and natural gas resources, and the potential impacts these activities might have on underground sources of drinking water. Bills were introduced on these issues in the 111 th Congress. Congress last reauthorized appropriations for most SDWA programs in the 1996 amendments, through FY2003. As with other EPA-administered statutes having expired funding authority, Congress has continued to appropriate funds annually for SDWA programs.

The 111 th Congress amended the Safe Drinking Water Act with the Reduction of Lead in Drinking Water Act, P.L. 111-380 . This legislation revised the act's definition of lead free (Section 1417(d)) to reduce the amount of lead allowed in water pipes, plumbing fittings, and fixtures to 0.25%. Previously, pipes and pipe fittings have been allowed to contain 8% lead, while fixtures were required to meet a lead leaching performance standard, rather than a lead content standard. This law is intended to further reduce exposure to lead from tap water.

Several SDWA funding bills also were enacted in the 111 th Congress. The American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5 ) provided $2 billion for drinking water infrastructure projects through the Drinking Water State Revolving Fund program; the Omnibus Appropriations Act, 2009 ( P.L. 111-8 ), included $829 million for this water infrastructure funding program; and the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 ( P.L. 111-88 ), provided $1.387 billion for the program. The FY2010 funding act and ARRA require states to make available at least 20% of their DWSRF grants for projects to address green infrastructure, water or energy efficiency improvements, or other environmentally innovative activities. Additionally, ARRA included $50 million for site characterization activities in geologic formations related to carbon sequestration, and $20 million for geologic sequestration training and research activities. After several short-term continuing resolutions for FY2011, Congress extended EPA funding at FY2010 levels through March 4, 2011, under the Continuing Appropriations Act, 2011 ( P.L. 111-322 ).

In July 2009, the Senate Environment and Public Works Committee reported the Water Infrastructure Financing Act ( S. 1005 , S.Rept. 111-47 ), which would have authorized a grant program and increase funding authority for the drinking water and clean water state revolving fund programs. The House Energy and Commerce Committee reported, amended, H.R. 5320 , the Assistance, Quality, and Affordability Act of 2010 ( H.Rept. 111-524 ). As passed, H.R. 5320 would have reauthorized funding for the DWSRF program for three years, tightened the definition of "lead free," applied Davis-Bacon prevailing wage provisions to projects financed in any way by a DWSRF, required a study on pharmaceuticals and personal care products in sources of drinking water, revised EPA's Endocrine Disruptor Screening Program, and made various other changes to the DWSRF program and the act more broadly.

Regulating Drinking Water Contaminants

Contaminant Candidate List

Since 1996, the Safe Drinking Water Act has required EPA to publish, every five years, a list of unregulated contaminants that are known or anticipated to occur in public water systems and that may require regulation (§1412(b)(1)). EPA published contaminant candidate lists (CCLs) in 1998 (CCL 1) and in 2003 (CCL 2). In early 2008, EPA published for public comment a draft CCL 3 that contained 93 chemicals or chemical groups and 11 microbiological contaminants (73 Fed. Reg. 9627). The draft list included commercial and agricultural chemicals, biological toxins, disinfection byproducts, and pathogens; 16 chemicals, including perchlorate, were carried over from CCL 2. EPA screened some 7,500 chemicals and microbes and selected 104 candidates for the draft CCL 3. As discussed below, the list did not include any pharmaceuticals. EPA solicited public input on the draft CCL 3 regarding the approach used to create the list, contaminants on the list, and specific contaminants such as pharmaceuticals.

Based on EPA's review of comments and newly available data, the agency made a number of changes from the draft to the final CCL 3. Among the changes, EPA deleted several chemicals and added 10 pharmaceuticals; one antibiotic (erythromycin), nine hormones, and three microbes.

Regulatory Determinations

Every five years, EPA is required to determine whether or not to regulate at least five of the contaminants included on the contaminant candidate list. The act requires EPA to evaluate contaminants that present the greatest health concern, and then to regulate those contaminants that occur at concentration levels and frequencies of public health concern, where regulation presents a meaningful opportunity for health risk reduction.

In July 2008, EPA published final regulatory determinations for 11 contaminants from the CCL 2 and issued the draft CCL 3. All of the determinations were decisions not to regulate. In making these determinations, EPA noted that the data indicated that the contaminants either did not appear to occur in public water systems, or appeared infrequently at levels of health concern, and that regulating the contaminants did not present a meaningful opportunity for health risk reduction. For those contaminants with low occurrence frequencies, EPA is updating and broadening the health advisories to reflect new information on the contaminants or to include information on a contaminant's degradation byproducts.

The agency did not make determinations for two chemicals that have been detected in numerous water supplies and have received considerable congressional attention: perchlorate and MTBE. EPA noted a decision was not made for MTBE because the health risk assessment for MTBE is being revised. In early January 2009, EPA stated its intent to request the NRC to review anew the available scientific data prior to EPA making a final regulatory determination. In August 2009, the Obama Administration announced its decision not to ask the NRC to conduct further review of perchlorate, having concluded that additional NRC review would unnecessarily delay regulatory decision making. Instead, on August 19, 2009, EPA published a Supplemental Request for Comments notice in the Federal Register , seeking public comment on additional ways to analyze the health effects and occurrence data for perchlorate. Specifically, EPA is re-evaluating potential perchlorate exposure for infants and young children, in addition to pregnant women and fetuses, as sensitive subpopulations. The agency intends to consider public comments before making a final regulatory determination. H.R. 3206 , in the 111 th Congress, would have required EPA to promulgate a drinking water standard for perchlorate. House-passed H.R. 4252 proposed to have the U.S. Geological Survey (USGS) conduct a study of water resources in the Rialto-Colton Basin, California, and evaluate perchlorate sources and levels in ground water.

Unregulated Contaminant Monitoring

In another provision aimed at improving the regulatory process, the 1996 amendments directed EPA to establish criteria for a program to monitor unregulated contaminants. This monitoring program enables EPA to collect data for contaminants that are not regulated but are suspected to be present in drinking water. Every five years, EPA is required to identify as many as 30 contaminants to be monitored. This list is largely based on the contaminant candidate lists. All systems serving more than 10,000 people and a sample of smaller systems must monitor for the contaminants. The resulting data are added to the National Contaminant Occurrence Database (NCOD). EPA published the first unregulated contaminant monitoring rule (UCMR 1) in 1999 requiring monitoring for 26 chemicals. In January 2007, EPA issued the second rule (UCMR 2), requiring systems to monitor for 25 chemicals over a 12-month period between 2008 through 2010. EPA had included perchlorate on the draft UCMR 2 list, but deleted it from the final list. EPA stated that it had sufficient perchlorate occurrence data, but some advocates of perchlorate regulation were critical of EPA's decision not to require further monitoring.

Standard-Setting

In the 1996 amendments, Congress attempted to focus regulatory attention on contaminants that posed the greatest health risks. The act's revised standard-setting provisions direct EPA to promulgate a National Primary Drinking Water Regulation for a contaminant if the Administrator determines that the following three criteria are met:

the contaminant may have adverse health effects; it is known, or there is a substantial likelihood, that the contaminant will occur in public water systems with a frequency and at levels of public health concern; and its regulation presents a meaningful opportunity for health risk reduction for persons served by public water systems. (SDWA §1412(b)(1)(a))

Drinking water regulations generally include numerical standards that establish the highest level of a contaminant that may be present in water supplied by public water systems. Where it is not economically or technically feasible to measure a contaminant at very low concentrations, EPA may establish a treatment technique in lieu of a standard, as it has done for lead and copper.

Developing a drinking water regulation is a complex process, and EPA must address technical, scientific, and economic issues. The agency must (1) estimate the extent of occurrence of a contaminant in sources of drinking water nationwide; (2) evaluate the potential human exposure and risks of adverse health effects to the general population and to sensitive subpopulations; (3) ensure that analytical methods are available for water systems to use in monitoring for a contaminant; (4) evaluate the availability and costs of treatment techniques that can be used to remove a contaminant; and (5) assess the impacts of a regulation on public water systems, the economy, and public health. Regulation development typically is a multi-year process. EPA may expedite procedures and issue interim standards to respond to urgent threats to public health.

After reviewing health effects studies, EPA sets a nonenforceable maximum contaminant level goal (MCLG) at a level at which no known or anticipated adverse health effects occur and that allows an adequate margin of safety. EPA also considers the risk to sensitive subpopulations, such as infants and children. For carcinogens and microbes, EPA generally sets the MCLG at zero. Because MCLGs are based only on health effects and not on analytical detection limits or the availability or cost of treatment technologies, they may be set at levels that are not technically feasible for water systems to meet.

Once the MCLG is established, EPA then sets an enforceable standard, the maximum contaminant level (MCL). The MCL generally must be set as close to the MCLG as is "feasible" using the best technology or other means available, taking costs into consideration (SDWA §1412(b)). The act does not discuss how EPA should consider cost in determining feasibility; consequently, EPA has relied on legislative history for guidance. Congress last addressed this issue in the Senate report accompanying the 1996 amendments, which stated that "feasible" means the level that can be reached by large, regional drinking water systems applying best available treatment technology. The Senate committee report explained that this approach is used because 80% of the population receives its drinking water from large community water systems, and thus, safe water can be provided to most of the population at very affordable costs.

However, because standards are based on cost considerations for large systems, Congress expected that standards could be less affordable for smaller systems. In 1996, Congress expanded the act's variance and exemption provisions to give small systems some added compliance flexibility. (See the discussion below on " Small Systems Issues .") Congress further revised the act to require EPA, when proposing a standard, to publish a determination as to whether or not the benefits of a proposed standard justify the costs. If EPA determines that the benefits do not justify the costs, EPA, in certain cases, may promulgate a standard that is less stringent than the feasible level and that "maximizes health risk reduction benefits at a cost that is justified by the benefits." EPA used this authority to establish new standards for arsenic and radium.

Recent and Pending Rules

EPA's latest rulemaking activities include a January 2006 rule package that expanded existing requirements to control pathogens (especially Cryptosporidium ) and disinfectants (e.g., chlorine) and their byproducts (e.g., chloroform). These rules, the Long Term 2 Enhanced Surface Water Treatment Rule (LT2 Rule) and the Stage 2 Disinfectant and Disinfection Byproduct Rule (Stage 2 DBP), complete a series of statutorily mandated rules that impose increasingly strict controls on the presence of pathogens and disinfectants and their byproducts in water systems. EPA promulgated a related Ground Water Rule to establish disinfection requirements for systems relying on ground water. In the past several years, EPA also issued standards for several radionuclides, including uranium and revised standards for radium and arsenic. These rules are expected to reduce an array of health risks for consumers, but they have potentially significant costs for the communities that must expand treatment facilities to comply with the standards.

In 2007, EPA completed revisions to the Lead and Copper Rule (LCR). The revisions were made to address weaknesses identified during a nationwide review of the rule, following the discovery of high lead levels in Washington, DC, tap water in 2004. The changes involved regulatory requirements for monitoring, treatment, customer notification, and lead service line replacement. Some of the regulatory revisions clarify the intent of the original LCR for provisions that may not have been sufficiently clear, while others revise LCR requirements. These changes are intended to strengthen implementation of the LCR in the short term; EPA is considering making more comprehensive revisions to the LCR and/or issuing additional guidance for public water systems.

Among ongoing rulemakings, EPA is revising the 1989 Total Coliform Rule, which controls the presence of bacteria in drinking water. EPA also has been working to finalize a radon rule (proposed in 1999), and has been evaluating numerous new contaminants, including perchlorate and MTBE, for possible regulation. As noted, in 2009, EPA published a notice in the Federal Register seeking additional comment on the analysis of data for purposes of making a regulatory determination for perchlorate. Specifically, EPA is re-evaluating potential perchlorate exposure for infants and young children, in addition to pregnant women and fetuses.

EPA also is updating risk assessments and regulations for several regulated contaminants, including chromium. Issued in 1991, the current drinking water standard for chromium is set at 100 parts per billion (ppb) and addresses all forms of chromium, including chromium-3, which is considered an essential nutrient. The total chromium standard was based on health effects data for hexavalent chromium (chromium-6), specifically to protect against allergic dermatitis. Although it was known that chromium-6 could cause cancer when inhaled, EPA concluded that the evidence was insufficient to determine whether chromium-6 could cause cancer in humans when ingested (in food or water). When issuing the standard, the agency noted that the only feasible approach at that time was to base drinking water exposure limits for total chromium on non-cancer health effects.

Substantial evidence now indicates that chromium-6 can cause cancer if ingested. In 2008, EPA began reviewing the chromium standard to determine whether it needed revision. In September 2010, EPA released for peer review and public comment a draft human health assessment specifically for chromium-6. The agency expects that the assessment will be completed later this year. EPA will use the health assessment and other available information to determine whether to develop a drinking water standard for chromium-6. The Administrator has stated that such a determination is likely. Table 2 reviews EPA's more recently proposed and finalized and drinking water regulations.

Pharmaceuticals in Drinking Water

As monitoring technologies have become available and testing has increased, traces of more pharmaceuticals and personal care products (PPCPs) have been detected in surface waters and drinking water supplies. Pharmaceuticals include prescription drugs, veterinary drugs, and over-the-counter medicines. Personal care products cover a broad spectrum and include cosmetics, hair products, sun-screens, fragrances, anti-bacterial soaps, and vitamins. These chemicals are released to the environment in various ways, including elimination of human and animal waste, disposal of unused medicines down the toilet, veterinary drug usage, hospital waste disposal, and industrial discharges.

Although significant research is being conducted, much is unknown about the occurrence and movement of PPCPs in the environment, their occurrence in drinking water supplies, or about the potential health risks from exposure to PPCPs at extremely low levels through drinking water. Nonetheless, the detection of pharmaceuticals and related products in public water supplies generates concern, because many of these products are specifically designed to have a biological effect in humans, animals, and/or plants. Pharmaceuticals often contain chemical compounds that can affect the endocrine system by altering, mimicking, or impeding the function of hormones. Such endocrine disrupting chemicals (EDCs) have the potential to affect growth, development, reproduction, and metabolism. Over the past decade, scientists and regulators have become increasingly concerned about the effects that exposures to low levels of PPCPs may be having on aquatic organisms, and also potentially on human health.

The U.S. Geological Survey (USGS) and EPA have identified a wide array of research needs and gaps that, if addressed, would help delineate the scope of environmental and human health issues that might result from the presence of PPCPs in the environment. The USGS has conducted research on the occurrence of hormones, pharmaceuticals, and other wastes in residential, industrial, and agricultural wastewater, and has found that a broad range of these chemicals occur commonly downstream from large urban areas and concentrated animal production areas. In June 2010, the USGS reported that pharmaceutical manufacturing facilities can be a significant source of pharmaceuticals in the environment.

EPA has been conducting and supporting numerous PPCP research projects in several areas, including the relative importance of different sources of PPCPs in the environment (e.g., veterinary vs. human medicine), how PPCPs move through the environment, human exposure pathways, ecological exposure pathways, monitoring and detection tools, assessment of potential human health effects, and assessment of potential ecological effects. Research is also being conducted to evaluate the ability of drinking water treatment technologies to remove various PPCPs.

The agency is also conducting a study to determine the amount of PPCPs that are discharged to wastewater treatment plants from various sources. As part of this study, EPA is evaluating how hospitals and other institutions dispose of unused medications. Other research projects address the development of analytical methods to determine the source and fate of PPCPs in the environment.

Ecological research has received particular attention because exposure risks for aquatic life have been considered to be much greater than those for humans. Nonetheless, a key research issue concerns the possible health risks from exposure to very low doses of the myriad chemicals found in PPCPs. Because PPCPs occur in the environment at low concentrations typically, their effects may be subtle. Among other research gaps, EPA has identified a need to develop tests that can detect more subtle health effects.

As noted above, EPA proposed its third list of unregulated contaminants being considered for regulation in February 2008. The draft Contaminant Candidate List 3 (CCL 3) contained 104 contaminants, none of which are pharmaceuticals. Following recent reports of the detection of pharmaceuticals and commonly used over-the-counter drugs in the drinking water supplies of 24 large community water systems, EPA has asked its Science Advisory Board (SAB) and stakeholders to evaluate and comment on the contaminant candidate screening and selection process to determine whether the process required revision. Based on recommendations, and review of comments and newly available data, the agency made a number of changes from the draft to the final CCL 3. Among the changes, EPA added 10 pharmaceuticals; one antibiotic (erythromycin), and nine hormones.

Because of ecological concerns, as well as human health concerns, regulating contaminants in drinking water represents only part of the response to this multi-faceted problem. Recognizing that people and animals will continue to take and use pharmaceutical products, water suppliers and other stakeholders consider changes at wastewater treatment plants to be a key part of the solution.

The Association of Metropolitan Water Agencies (AMWA), which represents the largest publicly owned water systems, has made several recommendations to address this emerging drinking water issue. Among these recommendations, the AMWA strongly encouraged EPA to make research on treatment technologies a high priority, and urged water utilities to inform consumers of efforts to monitor and remove pharmaceuticals from water sources. AMWA also called for EPA and the Food and Drug Administration (FDA) to determine whether the presence of trace amounts of pharmaceuticals results in short-term or long-term effects on health and the environment, recommended that the federal government take the lead in developing a national program for disposing of unused prescriptions, and called for animal feeding operations to reduce their contributions of antibiotics and steroids into water supplies.

In the 111 th Congress, several bills addressed this issue, including two that passed the House: H.R. 1145 ( H.Rept. 111-76 ), a water research bill, called for research on prevention and removal of contaminants of emerging concern, including PPCPs, in water resources; and H.R. 1262 ( H.Rept. 111-26 ), a water infrastructure funding bill, would have amended the Clean Water Act to require EPA to conduct a study on the presence of PPCPs in the nation's waters. Additionally, the House Appropriations Committee report for EPA's FY2010 appropriations ( P.L. 111-88 , H.Rept. 111-180 ) encouraged EPA to develop a plan to synthesize available research on contaminants of emerging concern, including endocrine disrupting compounds and additives to personal care products, and to apply a systematic approach to addressing the problem of such contaminants in water supplies. The House report further directed EPA to publish a list of at least 100 chemicals for screening in the Endocrine Disruptor Screening Program that includes drinking water contaminants such as PPCPs. Action was not completed on the Interior-Environment appropriations, and EPA is operating under a continuing resolution through March 4, 2011.

In July 2010, the House Energy and Commerce Committee reported, amended in the nature of a substitute, H.R. 5320 , the Assistance, Quality, and Affordability Act of 2010. As with EPA's FY2010 appropriations act, this bill would have revised the Endocrine Disruptor Screening Program and would have required EPA to list at least 100 substances for screening; it also would have set testing schedules and priorities. H.R. 5320 further would have directed EPA to conduct a study on PPCPs in sources of drinking water and to identity the sources of these products and their environmental and human health effects. Taking another approach, H.R. 276 proposed to require the EPA Administrator to convene a task force to develop recommendations for the proper disposal of unused pharmaceuticals to protect water sources. The Water Infrastructure Financing Act of 2009, ( S. 1005 , section 308) would have required the National Academy of Sciences (NAS) to conduct a study of the sources of PPCPs in the nation's waters and to evaluate the feasibility of methods to treat and control PPCPs in water. None of these bills was enacted.

Drinking Water Infrastructure Needs and Funding

A persistent SDWA issue concerns the ability of water systems to construct or upgrade infrastructure to comply with drinking water regulations and, more broadly, to ensure the provision of a safe and reliable water supply. In the 1996 amendments, Congress responded to growing complaints about the act's unfunded mandates and authorized a drinking water state revolving loan fund (DWSRF) program to help water systems finance infrastructure projects needed to meet drinking water standards and address the most serious health risks.

The program authorizes EPA to award annual capitalization grants to states. States then use their grants (plus a 20% state match) to provide loans and other assistance to public water systems. Communities repay loans into the fund, thus replenishing the fund and making resources available for projects in other communities. Eligible projects include installation and replacement of treatment facilities, distribution systems, and some storage facilities. Projects to replace aging infrastructure are eligible if they are needed to maintain compliance or to further public health protection goals.

The SDWA authorized appropriations for the DWSRF program totaling $9.6 billion, including $1 billion for each of FY1995 through FY2003. Congress provided $829.0 million for each of FY2008 and FY2009. In the American Recovery and Reinvestment Act (ARRA; P.L. 111-5 ), Congress provided an additional $2 billion for the DWSRF program. For FY2010, the President requested $1.5 billion for the program. Congress approved $1.387 billion in the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 ( P.L. 111-88 ). Since FY1997, Congress has appropriated more than $14.5 billion for this program. For FY2011, the President requested $1.29 billion. EPA programs are being funded through a continuing resolution through March 4, 2011. Table 3 lists funding levels for the DWSRF program since its inception.

Through June 2009, EPA had awarded $10.6 billion in capitalization grants, which, when combined with the 20% state match, bond proceeds, loan principal repayments, and other funds, amounted to $18.7 billion in DWSRF funds available for loans and other assistance. Through June 2009, 6,905 projects had received assistance, 4,567 of which had been completed, and total assistance provided by the program reached $16.2 billion.

The DWSRF program is well-regarded, but many state and local officials and interest groups have argued that greater investment in water infrastructure is needed. EPA's latest needs survey estimates that public water systems need to invest $334.8 billion on infrastructure improvements over 20 years (2007 through 2026) to achieve regulatory compliance and ensure the provision of safe water. Although all of the infrastructure projects in the needs assessment promote the health objectives of the act, EPA reports that just 16% ($52.0 billion) is attributable to SDWA regulations, while $282.8 billion (84%) represents nonregulatory costs. Most needs typically involve installing, upgrading, or replacing transmission and distribution infrastructure to allow a system to continue to deliver safe drinking water. Although aging, deteriorated infrastructure often poses a threat to drinking water safety, these needs occur independently of federal mandates.

EPA also has prepared a broader municipal wastewater and drinking water infrastructure funding gap analysis, which identified potential funding gaps between projected needs and spending from 2000 through 2019. This analysis estimated the potential 20-year funding gap for drinking water and wastewater infrastructure capital and operations and maintenance (O&M), based on two scenarios: a "no revenue growth" scenario and a "revenue growth" scenario that assumed infrastructure spending would increase 3% per year. Under the "no revenue growth" scenario, EPA projected a funding gap for drinking water capital investment of $102 billion ($5 billion per year) and an O&M funding gap of $161 billion ($8 billion per year). Using revenue growth assumptions, EPA estimated a 20-year capital funding gap of $45 billion ($2 billion per year), and no gap for O&M.

Other assessments also have found a funding gap. In 2000, the Water Infrastructure Network (WIN) (a coalition of state and local officials, water providers, environmental groups and others) reported that over the next 20 years, water and wastewater systems need to invest $23 billion annually more than current investments to meet SDWA and Clean Water Act health and environmental priorities and to replace aging infrastructure. WIN and other groups have proposed multibillion dollar investment programs for water infrastructure. Others, however, have called for more financial self-reliance within the water sector.

In the 111 th Congress, this issue found early focus in the economic stimulus debate. As noted, ARRA included $2 billion, while the FY2009 and FY2010 appropriations acts provided $829 million and $1.387 billion, respectively, for a total of more than $4.2 billion for drinking water infrastructure. After several short-term continuing resolutions for FY2011, Congress extended EPA funding at FY2010 levels through March 4, 2011, under the Continuing Appropriations Act, 2011 ( P.L. 111-322 ).

Beyond stimulus and appropriations actions, drinking water and other water infrastructure issues received attention. In July 2009, the Senate Environment and Public Works Committee reported a broad drinking water and wastewater infrastructure financing bill, S. 1005 ( S.Rept. 111-47 ), the Water Infrastructure Financing Act, which was similar to the committee bill from the 110 th Congress. It would have authorized more funding for drinking water and wastewater SRF programs (authorizing $15 billion over five years for the DWSRF), and created a grant program at EPA for small or economically disadvantaged communities for critical drinking water and water quality projects. S. 1005 included a Davis-Bacon prevailing wage provision, requiring that prevailing wage requirements would apply to all projects financed in whole or part through an SRF. This would be a new requirement for the states under the DWSRF program, and the provision has been problematic for similar legislation in recent Congresses. However, Congress did apply prevailing wage requirements to projects that are funded through ARRA or P.L. 111-88 . On July 1, 2010, the House Energy and Commerce Committee reported H.R. 5320 , the Assistance, Quality, and Affordability Act of 2010. As approved by the full committee, H.R. 5320 would have reauthorized the DWSRF for three years (for a total of $ 4.8 billion), applied Davis-Bacon prevailing wage provisions to projects financed in any way by a DWSRF, specified certain eligible uses of the fund (such as rehabilitation of aging infrastructure and projects that improve energy or water efficiency), and made other changes to this program.

The Water Protection and Reinvestment Act ( H.R. 3202 ) was offered to establish a dedicated water infrastructure trust fund. The trust fund would have been supported by taxes on various products, including PPCPs, water-based beverages, and a tax on some corporate profits. H.R. 537 , the Sustainable Water Infrastructure Investment Act of 2009, would have amended the Internal Revenue Code of 1986 to provide that the volume cap for private activity bonds would not apply to bonds for water supply or wastewater facilities. The purposes of this bill included providing alternative financing for water infrastructure investments and promoting the federal partnership with state and local governments.

In the face of uncertainty over increased federal assistance for water infrastructure, EPA, states, communities, and utilities have been examining alternative management and financing strategies to address SDWA compliance costs and broader infrastructure maintenance and repair costs. Such strategies include establishing public-private partnerships (privatization options range from contracting for services to selling system assets), improving asset management, and adopting full-cost pricing for water services. Still, these strategies may be of limited use to many small and/or economically disadvantaged communities, and stakeholders are likely to continue to urge Congress to increase funding for water infrastructure.

Small Systems Issues

An issue that has received considerable attention concerns the financial, technical, and managerial capacity of small systems to comply with SDWA regulations. Roughly 83% (42,600) of the nation's 51,651 community water systems are small, serving 3,300 persons or fewer, and 56% (28,800) of the community water systems serve 500 persons or fewer. Many small systems face challenges in complying with SDWA rules and, more fundamentally, in ensuring the quality of water supplies. Major problems include deteriorated infrastructure, lack of access to capital, limited customer and rate base, inadequate rates, diseconomies of scale, and limited managerial and technical capabilities. Because of these same characteristics, the DWSRF program has not been as successful for small systems, compared to larger systems. Although these systems serve just 9% of the population served by community water systems, the sheer number of small systems has created challenges for policymakers and regulators.

In the earliest SDWA debates, Congress recognized that setting standards based on technologies affordable for large cities could pose problems for small systems. During the reauthorization debate leading up to the 1996 amendments, policymakers gave considerable attention to the question of how to help small systems improve their capacity to comply with SDWA mandates. The 1996 amendments added provisions aimed at achieving this goal, including a requirement that states establish strategies to help systems develop and maintain the technical, financial, and managerial capacity to meet SDWA regulations. Congress also revised provisions on standard-setting (§1412(b)), variances (§1415(e)), and exemptions (§1416) to increase consideration of small system concerns.

Exemptions

The act's exemption provisions are intended to provide compliance flexibility in certain cases. States or EPA may grant temporary exemptions from a standard if, due to certain compelling factors (including cost), a system cannot comply on time. For example, all systems are required to comply with the new arsenic standard five years after its promulgation date. An exemption would allow three more years for qualified systems. Small systems (serving 3,300 persons or fewer) may be eligible for up to three additional two-year extensions, for a total exemption duration of nine years (and for a total of up to 14 years to achieve compliance). In the preamble to the arsenic rule published in January 2001, EPA noted that exemptions will be an important tool to help states address the number of systems needing financial assistance to comply with this rule and other SDWA rules (66 Federal Register 6988).

However, to grant an exemption, the law requires a state to hold a public hearing and make a finding that the extension will not result in an "unreasonable risk to health." Because of the administrative burden to the states and uncertainty as to what constitutes an "unreasonable risk to health," the act's exemption authority has seldom been used. Approximately 13 states had indicated that they would likely use the exemption process for the arsenic rule, but it appears that many states have not exercised this option.

Small System Variances and Affordability

In contrast to exemptions, variances offer a more permanent form of compliance flexibility for small systems. Since 1996, SDWA has required EPA, when issuing a regulation, to identify technologies that meet the standard and that are affordable for systems that serve populations of 10,000 or fewer. If EPA does not identify affordable "compliance" technologies, then the agency must identify small system "variance" technologies. A variance technology need not meet the standard, but must protect public health. States may grant variances to systems serving 3,300 persons or fewer if a system cannot afford to comply with a rule (through treatment, an alternative source of water, or other restructuring) and if the system installs a variance technology. With EPA approval, states also may grant variances to systems serving between 3,300 and 10,000 people. (Regulations addressing microbial contaminants are not eligible for variances under the statute.)

In 1998, EPA published affordability criteria to establish guidelines for determining whether a regulation is deemed affordable for small systems, and whether small system variances would be available. Under the criteria, EPA evaluates the affordability of a regulation by determining whether the compliance cost would raise the total water cost above 2.5% of annual median household income (MHI) in the three categories of small systems. Using this approach, EPA has determined that affordable compliance technologies are available for every drinking water regulation. Consequently, the agency has not identified any small system variance technologies, and thus, no small system variances are available.

Several recent regulations (such as the revised arsenic and radium standards and the Stage 2 Disinfectants and Disinfection Byproducts Rule) have heightened concern, particularly among rural communities, that EPA has not used the tools Congress provided to help small systems comply with SDWA regulations.

Affordability Criteria Review

Prompted by debate over the revised arsenic standard and its potential cost to small communities, the conference report for EPA's FY2002 appropriations ( H.Rept. 107-272 ) directed EPA to review its affordability criteria and how small system variance programs should be implemented for the arsenic rule. EPA began the review and sought the advice of the EPA's National Drinking Water Advisory Council (NDWAC) and Science Advisory Board (SAB).

The NDWAC considered recommendations from its affordability work group and reported to EPA in 2003. The council acknowledged the statutory basis for small system variances and recommended changes, but cautioned that "significant practical, logistical, and ethical issues mitigate against the use of variances." The National Rural Water Association, a member of the NDWAC work group, dissented and issued a separate report urging EPA to adopt a safe and affordable variance approach that would make variances available to small communities, as authorized by Congress. The Science Advisory Board concluded that EPA's basic approach was justified on the basis of equity, efficiency and administrative practicality, but recommended ways to improve the criteria. The SAB suggested that EPA consider lowering its affordability threshold, noting that "the national affordability threshold has never been exceeded, but some small water systems appear to have genuinely struggled with costs, suggesting that the 2.5% rule is too high." The SAB also encouraged EPA to develop clear guidelines about when variances should be granted, and recommended that EPA consider measures other than median income to better capture impacts on disadvantaged households.

In 2006, EPA proposed three options for revising its affordability criteria for determining whether a compliance technology is unaffordable for small systems (71 Federal Register 10671). EPA currently assumes that treatment technology costs are affordable to the average household if they do not cause median annual water bills to exceed about $1,000 (this threshold is calculated by taking 2.5% of median household income among small systems). Based on this approach, EPA has determined that affordable technologies are available for all standards. The three options EPA has proposed to replace this affordability threshold are well below that level: 0.25%, 0.50%, and 0.75%. EPA also requested comment on whether the agency should evaluate affordability strictly on a national level, or use a two-step process that would include evaluations of affordability first at the national level and then at the county level. A county level analysis would be performed only when a standard was found to be affordable at the national level. The revised criteria are further intended to address the issue of how to ensure that a variance technology would be protective of public health—an issue that has historically hampered the use of variances.

EPA has evaluated comments on the proposed revisions, and noted its intention to apply the revised criteria only to future rules. States could use the criteria to grant small-system variances, on a case-by-case basis, when systems cannot afford to comply with a standard. However, if these variances do become available, it is not clear how often they might be used. A key issue is that variances allow systems to provide lower-quality water in lower-income communities, and this could raise issues for states, communities, and consumers.

In its 2010 budget, the agency committed to work with state and local governments to provide "equitable consideration of small system customers." To accomplish this, EPA is reviewing various drinking water policies, including the use of small system variances, the existing variance determination methodology, the small water system capacity development strategy, and the DWSRF program.

Small System Legislation

Repeatedly over the past decade and again in the 111 th Congress, bills were offered to help small water systems comply with federal drinking water regulations. Among other provisions, S. 1005 ( S.Rept. 111-47 ), the Water Infrastructure Financing Act, would have created a grant program at EPA with funding priority to be given to small and economically disadvantaged communities. This legislation also proposed to authorize appropriations for the DWSRF program in the amount of $14.7 billion over five years. House-passed H.R. 5320 would have revised the factors states consider when developing affordability criteria for identifying disadvantaged communities, increased assistance to water systems and disadvantaged communities, and expanded technical assistance for small communities. H.R. 2206 would have amended SDWA to (1) authorize increased appropriations to EPA for technical assistance to help small water systems to comply with national primary drinking water regulations; and (2) direct the Administrator to provide technical assistance to organizations providing on-site technical assistance, circuit-rider technical assistance programs, training, and assistance with regulatory compliance and water security enhancements. H.R. 4798 would have amended the exemption provisions to require states to grant exemptions to small, nonprofit public water systems from naturally occurring contaminants, including arsenic and other specified contaminants, provided that the water system finds that compliance is not economically feasible. S. 3038 , which paralleled S. 2509 from the 110 th Congress, proposed to address several small system issues. This bill would have required EPA to (1) convene a work group to study barriers to using point-of-entry and other specified treatment technologies, (2) develop guidance to assist states in regulating and promoting these treatment options, and (3) revise affordability criteria for variance technologies to give extra weight to poorer households and communities. Among other provisions, S. 3038 would have required EPA or a state to ensure that funds have been made available to smaller systems before taking enforcement actions and that adequate technical assistance has been provided to these systems. The bill also would have allowed states to determine the exemption renewal period.

Underground Injection Control Program

Most public water systems rely on groundwater as a source of drinking water, and the 1974 Safe Drinking Water Act authorized EPA to regulate the underground injection of fluids (including solids, liquids, and gases) to protect underground sources of drinking water. SDWA section 1421 directed EPA to promulgate regulations for state underground injection control (UIC) programs, and mandated that the regulations contain minimum requirements for programs to prevent underground injection that endangers drinking water sources. Section 1422 authorized EPA to delegate primary enforcement authority (primacy) for UIC programs to the states, provided that state programs prohibit any underground injection that is not authorized by a state permit. Thirty-three states have assumed primacy for the program, EPA has lead implementation and enforcement authority in 10 states, and authority is shared in the remainder of the states.

The UIC program regulations specify siting, construction, operation, closure, financial responsibility, and other requirements for owners and operators of injection wells. EPA has established five classes of injection wells based on similarity in the fluids injected and activities, as well as common construction, injection depth, design, and operating techniques.

The 1974 SDWA specified that the UIC regulations could not interfere with the underground injection of brine from oil and gas production or recovery of oil unless underground sources of drinking water would be affected. In the Energy Policy Act of 2005, the 109 th Congress amended SDWA to specify further that the definition of "underground injection" excludes the injection of fluids or propping agents (other than diesel fuels) used in hydraulic fracturing operations related to oil, gas, or geothermal production activities.

Underground injection recently has been receiving congressional attention for its role as a potential means for sequestering carbon dioxide (CO 2 ) emissions in geologic formations to control greenhouse gas emissions. It also has emerged on the agenda because of the rapidly growing use of hydraulic fracturing in domestic natural gas production.

Carbon Sequestration and Storage

Geologic sequestration (GS) is the process of injecting CO 2 captured from a large stationary source (such as a coal-fired power plant) through a well deep into the earth for long-term storage. Research indicates that numerous geologic formations exist in the United States and worldwide that have the capacity to store large volumes of CO 2 . Because coal is responsible for nearly half of the electricity generated worldwide and its use is increasing, carbon capture and storage (CCS) is attracting a growing number of proponents who argue that, with proper site selection and management, geologic sequestration could play an important role in controlling CO 2 emissions.

Although considerable interest has emerged for the rapid, commercial-scale development of carbon sequestration projects, questions exist regarding the long-term safety and effectiveness of sequestration of large volumes of CO 2 . Issues include how sequestration activities might affect groundwater quality, what local health and environmental risks could arise from slow leakage or sudden releases of stored gas, and who would have long-term responsibility and legal liability for water contamination or other damages that might result from sequestration activities.

A key public health and environment issue concerns the potential for stored CO 2 to contaminate underground water supplies or otherwise adversely affect human health and the environment. According to a 2005 report by the United Nations Intergovernmental Panel on Climate Change (IPCC), human and environmental risks potentially could result from leaking injection wells, abandoned wells, or leakage across faults in rock formations and ineffective confining layers. The IPCC report noted that

Avoiding or mitigating these impacts will require careful site selection, effective regulatory oversight, an appropriate monitoring program that provides early warning that the storage site is not functioning as anticipated and implementation of remediation methods to stop or control CO 2 releases. Methods to accomplish these are being developed and tested.

Noting that knowledge gaps exist and that more demonstration projects are needed, the IPCC report concluded that, although "more work is needed to improve technologies and decrease uncertainty, there appear to be no insurmountable technical barriers to an increased uptake of geological storage as an effective mitigation option." However, uncertainties and research gaps involving the safety and effectiveness of long-term carbon sequestration, the potential health and environmental impacts, regulatory requirements, and long-term liability all pose hurdles to the rapid deployment of this technology.

In July 2008, EPA proposed regulations to create a nationally consistent framework for managing the underground injection of CO 2 for geologic sequestration purposes, thus taking a step toward providing certainty to industry and the public about requirements that would apply to this activity. The rule proposes to create a new class of injection wells (Class VI) for geologic sequestration, and establish national requirements that would apply to these injection wells. The proposed rule builds on the existing UIC program, including requirements for well owners and operators to ensure that wells are appropriately located, constructed, tested, monitored, and ultimately closed with proper funding. EPA's stated regulatory goal is to ensure that permitting regulations are in place to ensure that GS can occur in a safe and effective manner in order to enable commercial-scale CCS projects to move forward.

In 2009, EPA issued a Notice of Data Availability, providing new data and requesting additional public comment on issues that have evolved in response to comments on the proposed rule. The new data included, among other items, research from the Department of Energy (DOE) concerning GS projects and modeling to predict the potential impacts of sequestration activities on groundwater. In November 2010, EPA issued the final GS rule under the authority of SDWA Section 1421(42 U.S.C. 300h et seq. ).

A key issue surrounding the development of this regulation has been that EPA's authority under SDWA is limited to protecting underground sources of drinking water, thus leaving major issues unaddressed, such as long-term liability and regulation of potential emissions to the atmosphere. In particular, EPA would need new authority to address liability concerns, and this issue remains unresolved.

Congress has passed several provisions to facilitate and/or regulate the use of underground injection wells for the purpose of carbon sequestration. The American Recovery and Reinvestment Act of 2009 ( P.L. 111-5 ) provided $50 million for site characterization activities in geologic formations related to carbon sequestration, and $20 million for geologic sequestration training and research activities. The Energy Independence and Security Act of 2007 (EISA; P.L. 110-140 ) expanded the DOE carbon sequestration research and development program. EISA Section 702 directed DOE to conduct at least seven large-volume sequestration tests, in addition to conducting research promoting the development of sequestration technologies. Section 706 specified that the injection and sequestration of CO 2 under EISA will be subject to the requirements of the Safe Drinking Water Act, including the UIC provisions.

Other proposals in the past Congress included two energy and climate change bills that contained similar geologic sequestration regulatory and reporting provisions: H.R. 2454 ( H.Rept. 111-137 ), the American Clean Energy and Security Act of 2009, which the House passed; and S. 1733 ( S.Rept. 111-121 ), the Clean Energy Jobs and American Power Act, reported by the Senate Environment and Public Works Committee. Both bills would have amended SDWA by adding a provision directing the EPA Administrator to promulgate, within one year of enactment, regulations for the development, operation, and closure of CO 2 geologic sequestration wells, taking into consideration the ongoing SDWA rulemaking regarding these wells. The bills also would have amended the Clean Air Act and established a coordinated certification and permitting process for geologic sequestration sites. Within two years of enactment, the Administrator was to issue regulations to protect human health and the environment by minimizing the risk of atmospheric release of CO 2 injected for geologic sequestration, including enhanced hydrocarbon recovery combined with geologic sequestration. Both bills would have required EPA to submit a report to Congress detailing a national strategy for addressing the key legal and regulatory barriers to deployment of commercial scale carbon capture and sequestration. The bills further would have required reports examining (1) how environmental statutes would apply to CO 2 injection and sequestration activities, and (2) the legal framework for geologic sequestration sites, including existing federal and state environmental statutes and state common law.

Hydraulic Fracturing

A second UIC issue concerns the rapidly growing use of hydraulic fracturing to develop onshore, unconventional natural gas resources. Hydraulic fracturing involves the high-pressure underground injection of large amounts of water and other fluids into gas-bearing rock formations to form fractures that are propped open with sand and/or other materials and chemicals that are also injected. Once the formation is fractured, the natural gas can flow to the well where it is pumped out of the ground. Hydraulic fracturing is a technique that has enabled the production of natural gas and oil from unconventional formations, which represent an increasingly important source of domestically produced hydrocarbons. According to the Independent Petroleum Association of America (IPAA), roughly 90% of new gas wells rely on hydraulic fracturing, and 600 trillion cubic feet of gas have been produced using this process. Fracturing also has been used to produce 7 billion barrels of oil.

A single well may be fractured multiple times, using more than 6 million gallons of water in some locations. Treating and/or disposing of the contaminated flowback water from fracturing operations can pose groundwater and surface water quality management challenges for state regulators and gas developers. Landowners are expressing concern over the potential for contamination of their wells. Some contamination incidents have been reported, but most have been attributed to poor well construction or surface activities, rather than the fracturing process itself. However, proponents of stronger regulation and oversight of hydraulic fracturing argue that well construction is an essential component of natural gas development, which now largely depends on "fracking." Moreover, identifying the cause of a contamination incident can be difficult for various reasons, including the complexity or lack of hydrogeologic evaluations, the potential variety of circumstances in an area, a lack of baseline well-water monitoring, and the "confidential business information" status generally granted to fracturing fluid formulae.

Hydraulic Fracturing and the Safe Drinking Water Act

The Safe Drinking Water Act directs EPA to regulate the underground injection of fluids to protect underground sources of drinking water. Notwithstanding this general mandate, the law specifically states that EPA regulations for state UIC programs

may not prescribe requirements which interfere with or impede ... any underground injection for the secondary or tertiary recovery of oil or natural gas, unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection.

Consequently, EPA had not regulated gas production wells, and did not consider hydraulic fracturing to fall within the regulatory definition of underground injection. In 1997, the U.S. Court of Appeals for the 11 th Circuit ruled that the hydraulic fracturing of coal beds for methane production constituted underground injection and must be regulated. This decision applied only in the 11 th Circuit, and Alabama was the only state required to revise its UIC program.

In response to the 1997 court decision and citizen complaints about water contamination attributed to hydraulic fracturing, EPA began to study the impacts of hydraulic fracturing practices used in coal-bed methane (CBM) production on drinking water sources, and to determine whether further regulation was needed. In 2004, EPA issued a final (phase I) report, based primarily on interviews and a review of the available literature, and concluded that the injection of hydraulic fracturing fluids into CBM wells posed little threat to underground sources of drinking water and required no further study; however, EPA noted that very little documented research had been done on the environmental impacts of injecting fracturing fluids. EPA also noted that estimating the concentration of diesel fuel components and other fracturing fluids beyond the point of injection was beyond the scope of its study. Some Members of Congress and some EPA professional staff criticized the report, asserting that its findings were not scientifically founded.

The 109 th Congress also responded to the court's decision and, in the Energy Policy Act of 2005, amended SDWA Section 1421(d) to specify that the definition of "underground injection" excludes the injection of fluids or propping agents (other than diesel fuels) used in hydraulic fracturing operations related to oil, gas, or geothermal production activities. This language removed EPA's arguably latent authority under SDWA to regulate the underground injection of fluids for hydraulic fracturing purposes.

Since these developments, the use of hydraulic fracturing has increased markedly. So has concern over the potential impact on groundwater resources, and very few studies have been done to evaluate these concerns. Concerns initially involved the use of fracturing to develop coalbed methane; however, hydraulic fracturing is also essential to the development of gas from various unconventional shale formations in several southern and densely populated eastern states, creating new concerns about possible gas development threats to underground sources of drinking water, as well as to surface water quality and supply. These formations include the Marcellus shale, which underlies large parts of New York, Pennsylvania, and West Virginia. The U.S. Geological Survey recently noted that, while the extraction technology for this gas resource has advanced in recent years, "the knowledge of how this extraction might affect water resources has not kept pace."

The gas industry, and many states, argue that state regulations are adequate and more appropriate than federal regulation. The industry notes that roughly a million fracturing jobs have been conducted with few problems, and cautions that additional federal regulation is unnecessary and would likely slow domestic gas development, increase energy prices, and reduce energy independence. However, landowners have reported various incidents of well water contamination, and various environmental and citizen groups are calling for federal regulation and/or further study of this activity. The Ground Water Protection Council (GWPC), representing state groundwater protection agencies and underground injection control program administrators, argues for keeping regulatory authority with the states, and notes that states generally have effective programs in place to protect water resources during oil and gas development. However, the GWPC also notes that such environmental regulations are uneven among the states and offers recommendations for strengthening state programs.

Legislation in the 111th Congress

In the 111 th Congress, several bills proposed to address the treatment of hydraulic fracturing under SDWA. H.R. 2300 , the American Energy Innovation Act, expressed the sense of Congress that SDWA was never intended to regulate natural gas and oil well construction and stimulation, and that the 2005 SDWA amendment clarifying that SDWA was not intended to regulate the use of hydraulic fracturing should be maintained. Companion bills H.R. 2766 / S. 1215 , entitled the Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, would have amended the SDWA definition of "underground injection" to explicitly include the underground injection of fluids or propping agents used for hydraulic fracturing operations related to oil and gas production activities. The two bills also would have required public disclosure of the chemical constituents (but not the proprietary chemical formulas) used in the fracturing process. Disclosure of a propriety formula to the state, EPA Administrator, or treating physician or nurse would have been required in the case of a medical emergency. Similarly, the American Power Act, as drafted by Senators Kerry and Lieberman, would have amended section 324 of the Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. 11044) to require a hydraulic fracturing service company to disclose on the Internet all chemical constituents used in a hydraulic fracturing operation. None of the bills was enacted.

The House Appropriations Committee report accompanying the Department of the Interior, Environment, and Related Agencies Appropriation Bill, FY2010 ( P.L. 111-88 , H.Rept. 111-180 ), called on EPA to review the risks that hydraulic fracturing poses to drinking water supplies, using the best available science, as well as independent sources of information. Conferees agreed to the provision, and EPA's Office of Research and Development has begun work on this study, and expects to complete the study in late 2012.

Additionally in the 111 th Congress, the House Energy and Commerce Committee sent letters to eight hydraulic fracturing service companies asking for detailed information about the chemicals they use in the fracturing process. Given the importance of natural gas in domestic energy supplies and the long-standing role of the states in regulating the oil and gas industry, views have mixed on whether to mandate EPA to regulate hydraulic fracturing under SDWA. Many would like to wait for the results of the NRC and EPA studies before deciding on the need for federal legislation, while others have advocated the passage of the FRAC Act or chemical disclosure requirements. Still others have argued that states remain best positioned to oversee hydraulic fracturing as part of their long-standing oil and gas regulatory programs, and point to recent and pending regulatory developments in various states, such as Colorado, New York, Pennsylvania, and Wyoming. Various contamination incidents attributed to fracturing may have added urgency to state initiatives to review, and revise as appropriate, oil and gas regulations intended to protect water resources.

Congressional Hearings, Reports, and Documents

U.S. Congress. Senate. Committee on Environment and Public Works. Water Infrastructure Financing Act of 2009 . Report to accompany S. 1005 . 111 th Cong., 1 st sess. July 15, 2009. 59 p. ( S.Rept. 111-47 ).

U.S. Congress. House. Committee on Government Reform. Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs. EPA Water Enforcement: Are We on the Right Track? Hearing, October 14, 2003, 108 th Cong., 1 st sess. 201p. (Serial No. 108-157).

U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on Water Resources and Environment. Aging Water Supply Infrastructure . Hearing, April 28, 2004, 108 th Cong., 2 nd sess. 78 p. (Serial No. 108-63).

Additional Reading

U.S. Environmental Protection Agency. Providing Safe Drinking Water in America : 200 6 National Public Water Systems Compliance Report. Office of Enforcement and Compliance Assurance. Report No. EPA-K-09-002. March 2009. 18 p. plus appendixes. http://www.epa.gov/ compliance/ resources/ reports/ accomplishments/ sdwa/ sdwacom2006.pdf .

U.S. Environmental Protection Agency. Drinking Water State Revolving Fund Program: Increasing Impact , 2006 Annual Report . Office of Water. Report No. EPA 816-R-07-002, June 2007. 44 p. http://www.epa.gov/ safewater/ dwsrf/ index.html .

U.S. Environmental Protection Agency. The Clean Water and Drinking Water Infrastructure Gap Analysis Report. Office of Water. Report No. EPA 816-R-02-020. September 2002. 50 p.

National Research Council. Health Implications of Perchlorate Ingestion. Board on Environmental Studies and Toxicology. National Academies Press. January 2005. 177 p.