[Federal Register Volume 63, Number 150 (Wednesday, August 5, 1998)]
[Notices]
[Pages 41940-41946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20904]



[[Page 41939]]

_______________________________________________________________________

Part VI





Environmental Protection Agency





_______________________________________________________________________



SDWA Section 1401(4) Public Water System Definition as Amended by 1996 
SDWA Amendments; Notice

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

[[Page 41940]]



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.

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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 The Agency solicited comments on the draft 
guidance and, after consideration of numerous comments on the draft 
guidance, the Agency prepared the final guidance which is being 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)).
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    \1\ Primacy agency refers to either the EPA or the State or the 
Tribe in cases where the State or Tribe exercises primary 
enforcement responsibility for the public water systems.
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    This document incorporates and replaces the preliminary guidance on 
this topic issued December 6, 1996, by Assistant Administrator for 
Water Robert Perciasepe entitled ``Safe Drinking Water Act Amendment to 
Public Water System Definition.'' It is a collaborative effort between 
the Office of Water and the Office of Enforcement and Compliance 
Assurance (OECA). OECA has concurred with the contents of this document 
and will incorporate and implement it through 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.

[[Page 41941]]

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:
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    \2\ All references in this Guidance to Section 1401 refer to 
Section 1401 of the SDWA.

    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 Sec. 141.2. EPA has interpreted the term human consumption 
to include drinking, bathing, 4 showering, cooking, 
dishwashing, and maintaining oral hygiene, and this interpretation has 
been upheld by the courts. See United States v. Midway Heights County 
Water District, 695 F. Supp. 1072, 1074 (E.D. Cal. 1988) (``Midway 
Heights'').
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    \3\ As used in this Guidance, and as indicated in Section 
1401(4)(C), the term water supplier broadly refers to any water 
provider that may be subject to regulation as a public water system 
under the SDWA. This term should not be confused with supplier of 
water, which is defined in the SDWA as ``any person who owns or 
operates a public water system''. See SDWA Section 1401(7).
    \4\ EPA interprets the term ``bathing'' to mean use of water for 
personal hygiene purposes in a home, business setting, school, etc. 
The term ``bathing'' does not refer to situations such as (1) 
swimming in an open canal or (2) incidental, casual contact with 
water from an open canal in connection with outdoor activities such 
as agricultural work, canal maintenance, or lawn and garden care.
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    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
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    \5\ One or more of these water delivery methods may under 
certain circumstances be considered public water systems under 
existing interpretations of other parts of the definition of a 
public water system.
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    Water bodies or waterways that occur naturally but which are 
altered by humans may, in some cases, be constructed conveyances. 
Whether a particular water body or waterway is a constructed conveyance 
for purposes of Section 1401(4) depends on the totality of facts that 
characterize whether the water body or waterway is essentially a 
natural water body or waterway, or whether it is essentially a manmade 
conduit. 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 Sec. 141.2). For the 
supplier to be providing water to users, there must be an explicit or 
implied arrangement or agreement of some kind between a supplier and 
individuals using water. A

[[Page 41942]]

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

[[Page 41943]]

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
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    \6\ The three exclusions above do not otherwise affect the 
manner in which primacy agencies have defined a connection for the 
purposes of the SDWA.
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    However, if the supplier's remaining connections number fifteen or 
more, or if its remaining connections (even if they number fewer than 
fifteen) regularly serve at least twenty-five individuals, then the 
system is a PWS, although the excluded connections are not considered 
part of the PWS for as long as the exclusions apply and the system 
complies with any conditions governing their applicability.
B. Application of Section 1401(4)(B)(i)
    1. The ``Other Than Residential Uses'' Exclusion. 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.
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    \7\ Applicable national primary drinking water regulations means 
the NPDWRs that would apply to the water supplier if all its 
connections excluded pursuant to the alternative water and treatment 
exclusions were counted as connections.
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    The 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

[[Page 41944]]

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 point-of-
entry compliance technologies may also be helpful, as the listings may 
include a statement of certain limitations on the use of a specific 
technology for compliance that can focus primacy agencies' attention on 
key performance parameters.
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    \8\ See footnote 7.
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    The words ``equivalent level of public health protection'' are 
meant to distinguish the situation of providers covered by this section 
from the situation of public water systems which must comply with all 
relevant aspects of the applicable regulations, including sampling and 
testing requirements and sometimes details of treatment. For example, a 
point-of-entry treatment device for filtration and disinfection might 
not comply with all requirements of relevant drinking water rules for 
monitoring, extent of surveillance of the disinfection process, and so 
forth. But, it would meet the ``equivalent level of public health 
protection'' requirement of this section if the quality of the water it 
produces is similar to that from central filtration and disinfection. 
Thus, this requirement is a performance standard providing that the 
quality of the water that affected residential users get should be 
similar to that from central treatment.
    As stated in Section 1401(4)(B)(i)(III), treatment may be provided 
by the water supplier seeking to qualify for the exclusion, by a pass-
through entity, or by the user. 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 twenty-five regularly served 
individuals were defined as PWSs subject to SDWA regulation prior to 
the 1996 amendments. The amendments, however, provide a new exclusion 
for a specified group of these PWSs. Section 1401(4)(B)(ii) provides:

    An irrigation district in existence prior to May 18, 1994, that 
provides primarily agricultural service through a piped water system 
with only incidental residential or similar use shall not be 
considered to be a public water system if the system or the 
residential or similar users of the system comply with subclause 
(II) or (III) of clause (i).

    The exclusion provisions for qualifying piped irrigation districts 
were effective immediately upon passage of the 1996 amendments, in 
contrast with the expanded definition of public water system in Section 
1401(4) as applied to constructed conveyance systems, which became 
effective on August 6, 1998.
    An irrigation district referred to in Section 1401(4)(B)(ii) that 
would otherwise be defined as a PWS because it provides water for human 
consumption to at least fifteen connections or twenty-five regularly 
served individuals may avoid regulation as a PWS only if the primacy 
agency determines that all connections to the district that use the 
district's water for human consumption comply with subclause (II) or 
(III) of Section 1401(4)(B)(i). In 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

[[Page 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)?

[[Page 41946]]

    A9: There are various financial options available to those water 
suppliers. First, public water systems are eligible for Drinking Water 
State Revolving Fund loans--with subsidies available to disadvantaged 
communities. Even those water suppliers that wish to exclude 
connections through use of point-of-entry treatment or central 
treatment pursuant to Section 1401(4)(B)(i)(III) are eligible for these 
loans to provide such treatment. In addition, some communities known as 
``colonias'' may be eligible for assistance through federal grants to 
border States intended to provide assistance to such communities to 
facilitate compliance with SDWA requirements, although such grant 
funding has not previously been appropriated for this purpose. Finally, 
water suppliers providing alternative treatment have all the financial 
options regarding amortization and charging costs to users they would 
have for any other capital investment.

Disclaimer

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

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

[FR Doc. 98-20904 Filed 8-4-98; 8:45 am]
BILLING CODE 6560-50-P