Response to Comments on the Definition of a Public Water System in SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments

JULY 31, 1998

On May 8, 1998, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register (63 Fed. Reg. 25739-25746) seeking comments on the draft guidance "Definition of a Public Water System in SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments." The Federal Register notice asked that comments be submitted on or before June 22, 1998, to Jon Merkle, Drinking Water Office--(WTR-6), EPA Regon 9, 75 Hawthorne Street, San Francisco, California 94105 or by E-mail to merkle.jon@epamail.epa.gov.
 
By June 26, 1998, comments were received from the following entities:

1. Oklahoma Department of Environmental Quality (email) Rec. 6/08/98
2. Wellton-Mohawk Irr. and Drainage Dist. (postal) Rec. 6/15/98
3. Maryland Department of the Environment (email via Rick Rogers R-3) Rec. 6/16/98
4. Georgia Department of Natural Resources (email) Rec. 6/19/98
5. Association of California Water Agencies (email+UPS) Rec. 6/19/98
6. Placer County Water Agency (fax & postal) Rec. 6/19/98
7. Central Arizona Water Conservation District (CAP) (fax & postal) Rec. 6/19/98
8. Idaho Water Users Association (email) Rec. 6/22/98
9. Idaho Division of Environmental Quality (postal) Rec. 6/22/98
10. Imperial Irrigation District (Emergency Petition) (messenger) Rec. 6/22/98
11. Salt River Project (email & postal) Rec. 6/22/98
12. American Water Works Association (FedEx) Rec. 6/22/98
13. Irrigation and Electrical Districts' Ass. of Arizona (fax & postal) Rec. 6/22/98
14. Wheeler Ridge-Maricopa Water Storage District (fax & postal) Rec. 6/22/98
15. Northern Colorado Water Conservancy District (postal) Rec. 6/22/98
16. Oregon Water Resources Congress (email & postal) Rec. 6/22/98
17. Imperial Irrigation District (Comments) (messenger) Rec. 6/23/98
18. Oroville-Tonasket Irrigation District (postal) Rec. 6/26/98
 
This document is a record of responses made by EPA to these comments. Changes made to the draft guidance were incorporated into the text of the final guidance on "Definition of a Public Water System in SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments."
 
A late comment was received from the U.S. Department of the Interior, Bureau of Reclamation, on July 29, 1998. The comment was not received in time to be incorporated in this Response to Comments document or to have affected the formulation of the final guidance. However, most of the issues raised by this comment were also raised in other comments on the draft guidance, and, therefore, considered by EPA and addressed, as appropriate, in this Response to Comments document and the final guidance.

1.    Comment: The bathing component of EPA's interpretation of the term "human consumption" could be interpreted to include wading in canals or getting wet while doing canal maintenance or engaging in similar activities.

Several commenters suggested that EPA interpreted the "bathing" portion of the Midway Heights definition of human consumption (drinking, bathing, showering, cooking, dishwashing and maintaining oral hygiene) to include swimming in, wading in or otherwise having incidental contact with canal water. For purposes of interpreting Section 1401(4) of the Act, EPA interprets the term "bathing" to mean the use of water for personal hygiene purposes in a home, business setting, school, etc. EPA does not interpret the term "bathing" in this context to 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. The guidance text has been changed to reflect this interpretation.

2.    Comment: Must the primacy agency adopt the guidance's definition of "constructed conveyance"?
 
One commenter asked whether EPA could require a State primacy agency to adopt the new definition of "constructed conveyance" as defined in the guidance. EPA's regulations governing State primacy require State primacy agencies to adopt the expanded definition of "public water system" contained in SDWA Section 1401 (or a more stringent version), but do not require specifically that State primacy agencies adopt into regulation EPA's interpretations of terms, such as "constructed conveyance," that are discussed in the guidance. (See 40 CFR §§ 142.10(b)(6) and 142.12(a)). The guidance was modified slightly to clarify this point.

Top of page

3.    Comment: The guidance's definition of "constructed conveyance" is vague and confusing.

EPA has modified the guidance's definition of "constructed conveyance" to set forth more clearly the factors that the primacy agency should use to determine if a particular water body is a constructed conveyance.

4.    Comment: The "knows or should know" standard imposed on the supplier by the guidance exceeds the intent of Congress and is unworkable because it requires the supplier to access information that may be unreasonable or impossible for the supplier to attain.

Several industry commenters disagreed with EPA's position in the draft guidance that a water supplier will be considered a PWS if the supplier knows or should know that it is providing water for human consumption to the requisite number of connections or individuals. Related comments pertained to the issue of water theft and the draft guidance's discussion of whether individuals using water without the permission of supplier could be considered "connections."

The "knows or should know" standard appears in the guidance in two different contexts: (1) whether the supplier is "providing" water to a connection, and (2) whether the water provided is being used for "human consumption." EPA believes that its application of the "knows or should know" standard in the "providing water" context is consistent with the text of the SDWA and the intent of Congress. EPA has modified the draft guidance, however, to provide a more detailed explanation of how the "know or should know" standard should be used to ascertain whether a supplier is "providing" water, particularly where there is not an explicit agreement for water use between a supplier and a user. EPA also believes that its application of the "knows or should know" standard in the "human consumption" context is consistent with the Midway Heights court's application of this standard. EPA has modified the draft guidance to provide more detail on how the standard will be applied, as described more fully below in the response to Comment 5.

5.    Comment: The draft guidance's recommendation that water suppliers conduct surveys of their users, or take other investigative steps, to ascertain whether users are using water provided by the supplier for human consumption places an excessive burden on water suppliers.

Each water supplier is responsible for examining whether the new definition of PWS under the amended SDWA is applicable to that supplier's water system, just as a supplier is responsible for determining the applicability of and complying with any other law.
 
In order to find out whether they may be regulated under the new definition, suppliers should undertake reasonable efforts within their authority to ascertain their users' water use patterns. Reasonable efforts do not entail Herculean investigations or investigations that violate the law. Surveys of water users would in most cases constitute a reasonable effort to identify these water use patterns.
 
A supplier's failure to make a reasonable effort, such as conducting surveys, to gather any necessary information will not excuse the supplier from liability under the SDWA. On the other hand, water suppliers that do undertake 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, and will have a basis for evaluating whether the new PWS definition applies to their operation. In addition, information gathered in suppliers' surveys will aid the suppliers in deciding whether they may qualify for or should apply to the primacy agency for the exclusions in Section 1401(4)(B), and in documenting their case for any such exclusions.
 
Primacy agencies should determine what form of information they will need from water suppliers to implement the new definition of PWS, which may include surveys.
 
EPA has modified the draft guidance to clarify that suppliers should undertake reasonable efforts to determine their users' water use patterns. EPA has also clarified in the guidance that a survey of water users would constitute a reasonable effort in most cases, but should not be considered conclusive where other available evidence indicates that human consumption of water the supplier provides is probable.

Top of page

6.    Comment: EPA's discussion of waivers unnecessarily limits their proper roles in determining liability under the SDWA.
 
EPA believes that waivers are ineffective to protect a supplier against SDWA liability where the supplier knows or should know that the water it supplies to a user is being used for human consumption. However, that does not mean that waivers or warnings to customers have no evidentiary role in an enforcement proceeding; rather, it means just that they are not determinative of liability. A minor change was made to Answer 3 of the draft guidance to clarify EPA's position on this issue.
 
One commenter seemed to confuse waivers against human consumption with contractual agreements between a supplier and a user, or between a supplier and a pass-through entity, regarding the user's or pass-through entity's treatment of water provided by the supplier. A supplier that wishes to make use of the alternative treatment exclusion in Section 1401(4)(B)(i)(III) should work with the primacy agency to ensure that any contractual arrangement it has with the user or a pass-through entity to treat the water is adequate and to determine what additional criteria must be met to ensure that the treatment will provide continued attainment of the required level of health protection. No changes were made to the guidance in response to this comment.

7.    Comment: The "other than residential use" exclusion is automatic, and the primacy agency does not have authority to require a supplier to provide information to the primacy agency when the supplier is not within the jurisdiction of the SDWA.

While the "other than residential use" 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). Minor changes were made to the draft guidance to clarify this point.
 
Primacy agencies are required to maintain a current inventory of PWSs, to apply drinking water regulations to all PWSs within their jurisdictions, and to have enforcement authority adequate to compel compliance with applicable drinking water regulations. Primacy agencies should determine what types of information they need and are authorized to obtain from water suppliers to implement the new definition of PWS and to identify entities newly regulated under the SDWA. Suppliers that cooperate with the primacy agencies in this regard will have assurance about their PWS status, whereas those that do not may risk enforcement action.

8.    Comment: The exclusions in Sections 1401(4)(B)(i)(II) and (III) should apply without any determination by the primacy agency.

EPA disagrees. The statutory language makes clear that suppliers of water for human consumption through constructed conveyances to the requisite number of connections or users are public water systems unless the primacy agency determines that the suppliers qualify for the alternative water and/or treatment exclusions. The primacy agency must determine that the water is being provided or that treatment is in place, and that the water or treatment actually achieves the equivalent level of public health protection provided by the applicable national primary drinking water regulations, before exclusions from consideration apply to such connections. Specifically, subclauses (II) and (III) of Section 1401(4)(B)(i) provide that a connection shall not be considered a connection "if the [primacy agency] determines . . .".
 
The legislative history also supports a strict interpretation of the "determination" language. The House Report (No. 104-632) states:

 
Further, the primacy agencies have the expertise to determine whether alternative water or treatment achieves the equivalent level of protection provided by the applicable national primary drinking water regulations. Non-PWS water suppliers and users ordinarily are neither trained nor experienced in making such determinations. Not requiring primacy agencies to make such determinations prior to allowing systems to rely on these exclusions could result in substandard alternative water or treatment being provided to users. Having the primacy agency make an up-front determination allows regulatory requirements to be relaxed pursuant to the statute while ensuring the protection of public health.
 
No changes were made to the guidance in response to this comment.

Top of page

9.    Comment: Water suppliers should not be required to "provide" alternative water for residential or similar uses for drinking and cooking to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulations in order to rely on the exclusion in Section 1401(4)(B)(i)(II). They should be able to rely on users to supply their own alternative water.

EPA disagrees. The statutory language makes clear that the supplier must provide the alternative water. Subclause (II) of Section 1401(4)(B)(i) simply uses the phrase "is provided for", without specifying who must provide the alternative water, in contrast with subclause (III), which specifies that entities other than the supplier may treat the water in accordance with that exclusion. This contrast makes clear that the water supplier must provide the alternative water under subclause (II).
 
In addition, the legislative history strongly supports this interpretation. House Report No. 104-632 states:
 

The congressional intent to allow users to provide treatment, but not alternative water, under Section 1401(4)(B) is further supported by the subsequent paragraph of the House Report, which pertains to the "treatment" exclusion in subclause (III). There the Report acknowledges that "[a]s a general principle, the Safe Drinking Water Act does not allow a public water system to place the burden of compliance on its customer. However, the Committee recognizes that in several situations it may be appropriate to allow customers to assume this obligation." The Report then describes the reasoning behind allowing users to provide treatment under the exclusion in subclause (III), but provides no indication that the statutory language is intended to allow users to provide alternative water. A similar discussion appears in Report 104-169 of the Senate Environment and Public Works Committee on S. 1316.
 
Requiring the supplier to provide alternative water will ensure public health protection to the users of the water supply. Requiring the supplier to provide alternative water will make it much easier for the primacy agency (and the supplier facing potential SDWA liability) to ensure that the water actually achieves the equivalent level of public health protection provided by the applicable national primary drinking water regulations, as required by the statute. It would be very time-consuming for a primacy agency (or supplier) to determine whether alternative water obtained by users from a variety of sources (commercial and potentially noncommercial) actually achieves the level of public health protection required by the statute. In addition, this requirement should provide a relatively simple mechanism for the supplier and primacy agency to document that alternative water is actually being provided to users on an ongoing basis. Finally, in some cases it may be less costly for the water supplier to contract for alternative water than for individual users to obtain and transport their own alternative water.
 
No changes were made to the guidance in response to this comment.

Top of page

10.    Comment: The draft guidance's reference to the "reasonable cost" of alternative water should be deleted.

EPA agrees that the reasonableness of the cost of alternative water is not a criterion for the alternative water exclusion in Section 1401(4)(B)(II) and has deleted this reference from the guidance.

11.    Comment: EPA should read Section 1401(4)(B)(ii) to allow specified piped irrigation districts that would otherwise be considered PWSs to avoid regulation as PWSs by "reducing connections" to fewer than fifteen connections serving fewer than twenty-five individuals.

Some commenters indicated that they preferred a reading of Section 1401(4)(B)(ii) whereby specified irrigation districts that would otherwise be considered PWSs could avoid regulation as PWSs 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). However, for a number of reasons described below, EPA believes that the better interpretation is that which it proposed in the draft guidance. Under this interpretation, 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 that use the district's water for human consumption comply with subclause (II) or (III) of Section 1401(4)(B)(i).
 
First, piped irrigation districts that provide water for human consumption to the requisite number of connections or individuals were already considered PWSs under the pre-1996 definition. As such, the only change offered by the 1996 SDWA Amendments to affect the status of these piped irrigation districts was to provide them an opportunity to use these exclusions to remove themselves from PWS status. This opportunity is not available to any other types of piped water systems, and compliance with these exclusions is likely to be much simpler and less costly than the compliance required of PWSs with the entire SDWA (which can be avoided by appropriate use of the exclusions). Under these circumstances, EPA believes that the approach it has chosen is equitable and appropriate and protective of public health.
 
Second, the approach taken in the guidance is supported by Report 104-169 of the Senate Environment and Public Works Committee on S. 1316, which states that "[t]hese piped [irrigation] systems are not to be considered public water systems if all of the connections to the system comply with the requirements applicable under one or the other of the exclusions for alternative water or point-of-entry treatment." (p. 89, emphasis added). The irrigation district provision enacted in the SDWA Amendments is identical to the one first adopted in S. 1316 by the Senate Committee.
 
Finally, this approach provides an incentive to piped irrigation districts to give equal protection to all their connections for human consumption. This would prevent situations from arising where some users could receive untreated water while users at the excluded connections receive water that meets the requirements of the exclusion, i.e., it meets the equivalent level of protection provided by the applicable national primary drinking water regulations (NPDWRs).
 
Some commenters also expressed confusion about the number of connections for human consumption that a piped irrigation district must have to be considered a PWS. The draft guidance and Questions 7 and 8 (Questions 8 and 9 in the draft guidance) were modified to clarify that, like other types of water suppliers, the piped irrigation districts specified in Section 1401(4)(B)(ii) are defined as PWSs in the first instance only where they supply water for human consumption to at least 15 connections or 25 regularly served individuals. However, as stated above, all human consumption connections to this kind of PWS must comply with subclause (II) or (III) of Section 1401(4)(B)(i) before the supplier will no longer be considered a PWS.

Top of page