Guidance on Public Water System Definition

The Safe Drinking Water Act (SDWA) Amendments of 1996 contain a provision which amended Section 1401(4) regarding the definition of a public water system.

Background

This provision was developed in response to the Imperial Irrigation District case, as discussed in the Senate Report on S. 1316 (Rpt. 104-169, pp. 87-89). In this case, EPA sought to apply requirements of SDWA to an irrigation district supplying residential users with untreated canal water which presented serious health risks from potential ingestion of contaminants (particularly microbial). The U.S. Court of Appeals held in this case that the definition of a publi c water system (PWS), and thus the requirements of SDWA, applied only to entities delivering water for human consumption through "pipes" -- as specified in the previous Section 1401(4) definition -- not canals.

The amended Section 1401(4) does two things. First, it expands the definition of a PWS (in 1401(4)(A)) to include suppliers of water for human consumption which use constructed conveyances that are not pipes. Second, i t provides a detailed means by which the Administrator or primacy State can determine that entities that would only be defined as PWSs because of this change to the definition are excluded from being PWSs (thus excluding them from compliance with SDWA as a whole) if they have taken specific actions to ensure protection of public health when providing certain water for human consumption (Section 1401(4)(B) and (C)).

This document is intended to clarify and provide guidance in implementing Section 1401(4). The time given to implement the exclusion provisions is short (by August 1998), and their complexity may have generated some confusion about what water supplier situations they may or may not apply to, and how they apply. Consistent with our broad SDWA implementation strategy, we will also convene an EPA-State work group to develop more detail on its application within the guidance of this memo, as primacy Stat es will be principally responsible for applying it in specific cases. We will also consult with other stakeholders as appropriate.

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Summary of key points in this document

• The definition of a public water system (PWS) was changed only as to the means of delivering water, not as to how many connections or users are served. Any supplier delivering water for human consumption to less than 15 service connections or 25 regu larly served persons is not a PWS.
  
• It does not count as a "service connection" where a water supplier indirectly provides water for human consumption to a municipality or pass-through entity which actually provides the water to end users, and which is itself a PWS that must meet SDWA r equirements.
  
• Whether it is a "connection" where individuals directly take water for human consumption from a supplier's open conveyance depends on the facts of each situation, as whether there is an explicit arrangement with the supplier, or whether the supplier k nows or should know about, and has consented to, the water being taken for human consumption. The EPA-State work group to be convened on this provision will clarify this point in greater detail.
  
• The Amendments allow a water supplier that would become a PWS only because of the change in definition, not to become a PWS if the Administrator or the primacy State determines that, by August 6, 1998 and thereafter, the supplier provides to the conne ctions or users receiving water for human consumption alternative water or ensures alternative treatment, achieving health protection equivalent to national drinking water standards. Water suppliers subject to this requirement may charge users full cost for either option, and for alternative treatment may amortize costs and be eligible for State Revolving Fund loans.

Application of Section 1401(4)

Section 1401(4)(B) provides that, where connections to deliver water for human consumption might otherwise qualify a supplier as a public water system under the broadened definition, those connections are excluded from consideration where the water is not used for "residential uses," where alternative water is provided for drinking and cooking, or water for drinking cooking, and bathing is treated (centrally or by point of entry). Alternative or treated water must provide a level of health protection equivalent to the applicable EPA drinking water standard(s). Section 1401(4)(C) provides a two-year transition period for compliance.

Do all water suppliers using constructed conveyances have to meet the requirements of Section 1401(4)(B) and (C) for the water they supply for human consumption? The answer is, not all water suppliers using constructed conveyances will be affected by these amendments. The SDWA definition of a "public water system" contains two elements, only one of which was changed by the 1996 Amendments. The means for delivering water that might qualify a water supplier as being a public water system was broadened from "piped water" to water delivered using "pipes or other constructed conveyances." But, the second element of the definition -- that the supplier also delivers water for human consumption to at least 15 service connections or 25 regularly serv ed persons -- is unchanged. Thus, a water supplier using constructed conveyances, but delivering water for human consumption through them to fewer than either 15 connections or 25 regularly served persons, would not be a public water system.

What is a "service connection" in the cases of water suppliers using constructed conveyances? It is not a connection where a water supplier indirectly provides water for human consumption by providing water to a municipality or pass-through entity wh ich is itself a PWS responsible for meeting SDWA requirements, and the end users actually receive that water for human consumption from the municipality or other entity. (See Senator Kempthorne's colloquy with Senator Chafee ; this and all Congressional Record references to follow can be found at Cong. Rec. S17773, 11/29/95.) Also, it is not a connection where the water is used exclusively for uses other than residential uses (defined as drinking, bathing, cooking, or simil ar uses).

However, there are situations in which water from constructed conveyances may be used for human consumption directly by end users. Whether such use is a "service connection" should reflect the practical and legal relationship between the water suppli er and the end users. The Senate authors of this provision agreed that where "a number of people withdraw water for drinking water use without the permission or knowledge of the [irrigation] system," (Statement of Senator Baucus, see Cong. Rec. cite) those withdrawals are not considered "connections." Senator Chafee noted that:

[i]n describing a public water system, EPA's regulations and guidance use such terms as "serves" and "delivers," usually in the context of "customers." These terms are clearly contrary to a situation where the irrigation system does not either consent to having water withdrawn for human consumption, or know that such withdrawals are occurring with respect to the requisite number of connections or customers. (see Cong. Rec. cite)

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Thus, where it is necessary to determine if a residential use is a "service connection," the determination by the Administrator or the primacy State should hinge on whether or not there is any explicit or implied arrangement or agreement between a supp lier and individuals withdrawing water for human consumption. Examples of such agreements or arrangements could include a water supplier's acceptance of payment from a user for water withdrawals, or the inclusion of housing in a work agreement with tempo rary or permanent workers. Where an explicit arrangement or agreement is not obvious from the facts, the determination on whether or not a water supplier is providing water for human consumption should be based on whether the supplier knows or has reason to know that the water is being diverted for human consumption, and whether the supplier has consented to such a diversion.

To determine if a supplier had knowledge of or consented to the use or diversion of water, we expect that EPA and States would generally look to the actions property owners would take in the ordinary course of business to maintain their property rights . A supplier would, for example, be expected to continue normal, routine inspections or operation of water conveyances to detect trespassers (or in this case, unauthorized diversions), and to continue to take the actions typically used to maintain right s against the adverse possession of interlopers (for example, notice to persons found making unauthorized diversions that the supplier does not consent to the diversion and that the water is not intended or made safe for human consumption) (see Cong. Rec. cite).

What is the scope of the obligations for a water supplier that would become a public water system (PWS) only because of the change made to the definition of a PWS in Section 1401(4)(A)? The amendments to Section 1401(4) do not make any water supplier newly affected by its broader, amended coverage into a public water system in order to have the full SDWA apply to that supplier. The amendments allow a water supplier that would be classified as a public water system (PWS) only because of the 199 6 change in the definition of a PWS to exclude its connections from classifying it as a PWS if the Administrator or the primacy State determines that the supplier has complied with amended Section 1401(4)(B) and (C) as described in the first paragraph of this section.

Also, there are some financial options available to those water suppliers with the requisite number of connections who must comply with Section 1401(4)(B) and (C). First, State Revolving Fund loans -- with further subsidies possible at State discreti on for disadvantaged communities -- are available for investments in point-of-entry or other alternative treatments. Such alternative treatments are intended to use cost-effective, affordable technologies whose performance is measured by whether they pro vide a level of protection equivalent to the national drinking water standards. Finally, water suppliers providing alternative treatment have all the financial options regarding amortization and charging costs to users they would for any other capital in vestment. Regarding either option under Section 1401(4)(B) -- alternative treatment or alternative water -- the House Committee report (Rpt. 104-632) noted that "[a]s with a public water system, the water system may charge users for the reasonable costs of the water supplied."

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Work Group

While this document should clarify the application of amended Section 1401(4) in many cases, some situations may need further analysis. The work group will give particular attention to what constitutes a "connection"; what factors and fact patterns mi ght illuminate the questions of a supplier's "knowledge" and "consent" to residential use of water; and -- consistent with the provision of Section 1401(4)(C) that the approach outlined in 1401(4)(A) and (B) continue to apply "at any time after" the two y ear transition period -- what streamlined and appropriate but effective means are needed to confirm that the alternative chosen by a supplier to exclude connections under 1401(4)(B) continues over time to "achieve the equivalent level of public health pro tection" to the drinking water standards.