Water Laws and Regulations

ENV H 440/ENV H 545

John Scott Meschke

Office: Suite 2338,

4225 Roosevelt

Phone: 206-221-5470

Email: jmeschke@u.washington.edu

Course Link

http://courses.washington.edu/h2owaste/

Goals for Today

• Familiarity with major federal laws as they apply to public health

• Recognize commonalities between CWA and SDWA

• Understand what is Public Water System

• Understand processes for setting WQS and DWS

• Understand key terms in water regulation

Water Rights• Surface Water

– Riparian Doctrine• Prevails in the East• Rule of Reasonable Sharing • Linked to Riparian Land

– Appropriation Doctrine• Prevails in the West• First in Time, First in Right• Right of Use Independent of Land

– Federal Reserved Water Rights• Winters Doctrine• Reservation of Water Rights By Implication

– Federal Contractual Rights• Used by Bureau of Reclamation and Army COE

– In-Stream Water Rights• State Laws to protect aesthetics, fish and wildlife

Water Rights

• Groundwater– Rule of Absolute Ownership

• Owner of land owns everything below • In practice, rule of capture

– Rule of Reasonable Use• Also incident of land ownership• If use interferes with neigboring property, must be

reasonable• Overlying use inherently reasonable

– Rule of Correlative Rights• Overlying use is not absolute• Requires Sharing

– Appropriation or Permit System• Rule of Priority

Washington Water Rights• Surface Right System

– Appropriation and Riparian (since 1917 appropriation only)– First in time, First in right, but DOE may consider highest

and best use– Domestic and municipal uses have higher priority

• Permits required for surface water diversion and for groundwater withdrawal of 500 GPD or more

• Rights are saleable and transferable• Changes in place of use, purpose, point of

diversion or withdrawal require approval by Dept. of Ecology (DOE)

• DOE controls in-stream flow, water quality, administration of water rights, delivery of water and all aspects of permitting

Evolving Federal Involvement

• Public Health Service (1798)– Ground water protection and chemical pollution– Studies and funding

• Indian Health Service (1921)– Water and wastewater facilities

• Federal statutes (no enforcement authority)– Water Pollution Control Act of 1948– Federal Water Pollution Control Act of 1956– Water Quality Act of 1965

EPA Established

• Drinking water program moved from Public Health Service to EPA

• First inventory of community water systems conducted

EPA established

December 2, 1970

Post-EPA History of Water Regulation

SDWA Amendments

SDWA Amendments

19701970

19771977 1996199619871987

Clean Water Act

Clean Water Act

CWA Amendments

CWA Amendments

FWPCA Amendments

FWPCA Amendments

19741974

19721972

19861986

Coastal Zone Coastal Zone Management ActManagement Act

Coastal Zone Coastal Zone Management ActManagement Act

Marine Protection, Marine Protection, Research and Research and

Sanctuaries ActSanctuaries Act

Marine Protection, Marine Protection, Research and Research and

Sanctuaries ActSanctuaries Act

Safe Drinking Water Act

Safe Drinking Water Act

SDWA Amendments

SDWA Amendments

19901990

Oil Pollution Act

Oil Pollution Act

Washington Water Laws

• Washington Water Code of 1917• 1945 Ground Water Code• Minimum Water Flows and Levels Act of 1967• 1967 Water Right Claims Registration• Water Resources Act of 1971• 1971 Water Well Construction Act• 1989 Water Use Efficiency Act• Growth Management Acts of 1990 and 1991• Watershed Management Act of 1998

Washington State Water Quality

• Public Water Systems (70.119A RCW)

• Group A Public Water Systems (246-290 WAC)

• Minimum Standards for Construction and Maintenance of Wells (173-160 WAC)

• On-Site Sewage Systems (246-272 WAC)

Common Processes Between CWA and SDWA

• Primacy or authorization

• Permitting

• Enforcement

• Setting risk-based standards

Primacy/Authorization Approval Process

EPA promulgates

new regs

State adopts State adopts regsregs

State submits State submits requestrequest

EPA review and EPA review and determinationdetermination

EPA notice EPA notice and and

commentcomment

EPA approves or EPA approves or disapprovesdisapproves

Who is Eligible for Primacy/Authorization?

50 StatesDistrict of Columbia

Puerto Rico

Guam

Northern Marianas

Virgin Islands

American Samoa and

Former Trust Territories

Tribes

Tribal Status under SDWA and the CWA

• Treaties formalize a nation-to-nationnation-to-nation relationship between the Federal government and Tribes

• Constitution recognizes Tribes as distinct governments

• CWA and SDWA treat Tribes as States• EPA implements Federal programs

where Tribes do not have primacy/ authorization

Status of PWSS Primacy

Primacy program

Federal program

Status of NPDES Authorization

Base, FF, PT, GenBase, FF, PT, Gen, BioBase, GenBase, PT, GenBase, FF, Gen

Federal, State and Tribal Roles

• EPA– Develop national regulations,

guidance and policies– Implement programs in non-

delegated States and Tribal lands

– Oversee authorized/primacy programs, including taking enforcement action as appropriate

– Provide information to the public

– Provide leadership on research

– Award and oversee grants

• Primacy/Authorized States and Tribes– Develop State/Tribal regulations,

guidance and policies– Implement the authorized/

primacy program– Issue permits– Monitor compliance with

State/Tribal standards and permits

– Enforce State/Tribal standards– Report to EPA– Provide public information– Administer grants

What Is a Permit?

• Establishes the technical and administrative conditions for operation

• Allows EPA and States to track compliance

• Assures communication between regulated party and permitting authority

• Includes the public as a stakeholder

Enforcement

• Agencies have discretion in enforcement– Actions depend on risk to public health, environment

and facility history

• Preventive actions come first• Informal actions are less resource-intensive,

often effective in achieving compliance• Formality of actions escalates with continued

noncompliance

OF VIOLATION

Enforcement

• Formal enforcement actions– Administrative orders and penalties– Civil actions– Criminal actions

Enforcement

• Referral to EPA for enforcement

• Joint EPA-State enforcement actions

• Independent EPA enforcement actions

• Citizen suits

Program Admin. Penalties Civil Penalties Criminal Penalties

SDWA: NPDWRs

$1K/day/V for PWS >10,000 people (States)

Up to $25K/day/V Per Title 18 of U.S. Code

SDWA: PWS Tampering

Up to $50K for tampering

Up to $20K for threat or attempt

Imprisonment up to 5 years

SDWA: UIC Up to $10K/day/V to $125K

Oil and gas:

Up to $5K/day/V to $125K

Up to $25K/day/V “Willful”

$25K/day/V and/or 3 years

CWA: NPDES

Class I: Up to $10K/V to $125K

Class I: Up to $10K/day to $125K

Up to $25K/day/V “Negligent” -- $2.5K to $25K/day

“Knowing” -- $5K to $50K/day and/or 3 years

“Knowing endangerment” -- Up to $250K and/or 15 years

Enforcement Penalties

Setting Risk-Based Standards

• Both statutes set standards based on risk to human health– Clean Water Act standards are also based on

risk to the environment

• Analysts use similar tools– Toxicology experiments– Epidemiology studies

Quiz

Who is eligible for primacy/authorization under both SDWA and the CWA?

States, Tribes and territories

Quiz

The four key processes common to SDWA and the CWA are:

Primacy/authorization Permitting Enforcement Risk-based standard setting

An Overview

of the

Safe Drinking Water Act

Provisions of 1974 SDWA

• EPA to promulgate National Primary Drinking Water Regulations

• Established the public water system supervision (PWSS), underground injection control (UIC), and sole source aquifer (SSA) programs

• Provided for State implementation (primacy)

Provisions of 1974 SDWA

• Gave EPA authority to set drinking water standards

– Recommended Maximum Contaminant Level (RMCL)

– Maximum Contaminant Level (MCL)

– Treatment technique

1986 SDWA Amendments

• Prescriptive

• Tight deadlines

• 83 contaminants in 3 years

• Additional 25 contaminants every 3 years

• Added ground water protection program– Wellhead protection

1986 SDWA Amendments

• Creation of the NTNC category of water system

• Organic chemicals– Monitoring and detection– Risk communication

• Surface water treatment rule– Higher filtered water standards– Filtration avoidance

• CT calculations

1986 SDWA Amendments

• Ground water under the direct influence (of surface water) - GWUDI

• Public notification• Increased burden on States with limited

resources• More stringent coliform monitoring requirements• Lead and copper rule and corrosion control

1996 Safe Drinking Water Act Amendments

Burdensome regulatory Burdensome regulatory structurestructure

Insufficient State fundingInsufficient State funding

Enforcement-based Enforcement-based approachapproach

Inadequate public access Inadequate public access to informationto information

Source water protectionSource water protection

DWSRF and set-asidesDWSRF and set-asides

Enforcement flexibility; Enforcement flexibility; capacity developmentcapacity development

Consumer information Consumer information and right-to-knowand right-to-know

CONCERNCONCERNRemove mandatory Remove mandatory contaminantscontaminants

PROVISIONPROVISION

What Is a Water System and How Is

it Regulated?

Public Water Systems

• At least 15 service connections or service to 25 people per day for at least 60 days

• Community Water System– Serves the same people year-round

• Non-Transient, Non-Community Water System– Serves the same people for more than 6 months but

not year round

• Transient, Non-Community Water System– Serves the public, but not the same individuals for

more than 6 months

SDWA Programs Today

• Protect public health through:

– Contaminant standard setting

– Source water protection

– Underground injection control

– Public water system supervision

Drinking Water Regulations

• National Primary Drinking Water Regulation– Legally enforceable standard– Limits levels of specific contaminants that can

adversely affect public health– Maximum Contaminant Level or Treatment Technique

• National Secondary Drinking Water Regulation– Nonenforceable guideline– Covers contaminants that may cause cosmetic or

aesthetic effects

Establishing Standards

Step 1Determining Contaminants

Step 2Establishing

Priorities

Step 3DevelopingRegulations

Selecting Contaminants for Regulation

Contaminant Contaminant Candidate Candidate

ListListUpdated Every Updated Every

5 Years5 Years(Currently 50 chemicals, (Currently 50 chemicals,

10 microbials)10 microbials)

Contaminant Contaminant Candidate Candidate

ListListUpdated Every Updated Every

5 Years5 Years(Currently 50 chemicals, (Currently 50 chemicals,

10 microbials)10 microbials)

Sound ScienceSound ScienceSound ScienceSound Science

Public InputPublic InputPublic InputPublic Input

Regulatory Regulatory Determination Determination on Five on Five Contaminants Contaminants Every 5 YearsEvery 5 Years

Regulatory Regulatory Determination Determination on Five on Five Contaminants Contaminants Every 5 YearsEvery 5 Years

Establishing Standards –Setting Priorities

Occurrence Data

Human Exposure

Health Risks

CCLHealth Effects

Studies

Regulation?

Unregulated ContaminantMonitoring Regulation

NationalContaminantOccurrence

Database

SDWA Regulatory Schedule

1996199612/9812/98

Final Filter Final Filter Backwash Backwash

Recycling RuleRecycling Rule

Final Filter Final Filter Backwash Backwash

Recycling RuleRecycling Rule

Final IESWTR and Final IESWTR and Stage 1 DBRStage 1 DBR

Final IESWTR and Final IESWTR and Stage 1 DBRStage 1 DBR

Sulfate Study Sulfate Study CompletedCompleted

Sulfate Study Sulfate Study CompletedCompleted

1/991/99 1/011/01

SDWA SDWA AmendmentsAmendments

SDWA SDWA AmendmentsAmendments

Final Long Term 1 Final Long Term 1 ESWTRESWTR

Final Long Term 1 Final Long Term 1 ESWTRESWTR

6/016/01

1/021/02

Final Arsenic RuleFinal Arsenic RuleFinal Arsenic RuleFinal Arsenic Rule

Final Radionuclides Final Radionuclides RuleRule

Final Radionuclides Final Radionuclides RuleRule

12/0012/00

Proposed Stage 2 Proposed Stage 2 DBR andDBR and

Long Term 2 Long Term 2 ESWTR, and Final ESWTR, and Final

Ground Water Ground Water Rule and Radon Rule and Radon

RuleRule

Proposed Stage 2 Proposed Stage 2 DBR andDBR and

Long Term 2 Long Term 2 ESWTR, and Final ESWTR, and Final

Ground Water Ground Water Rule and Radon Rule and Radon

RuleRule

20032003

6-Year Review Cycle

• SDWA Requires Review of Existing Regulations

• The Total Coliform Rule is Under Review

– Schedule to Be Determined

– Not Likely Revised, if Necessary, by 2002

Drinking Water Regulations:Key Terminology

• Maximum Contaminant Level Goal (MCLG)– § 1412(b)(4)(A): “…level at which no known

or anticipated adverse effects…occur and which allows for an adequate margin of safety.”

– Not enforceable

Drinking Water Regulations: Key Terminology

• Maximum Contaminant Level (MCL)– § 1412(b)(4)(B): “. . .level. . . which is as

close to the maximum contaminant level goal as is feasible.”

– Enforceable• Treatment Technique

– § 1412(b)(7): “. . . in lieu of establishing a maximum contaminant level, if . . . it is not economically or technologically feasible to ascertain the level of the contaminant.”

– Enforceable

Considerations for MCLs and TTs

• Basis for setting MCLs and TTs– Acute or chronic exposures– Occurrence in drinking water systems

• Number of water systems with contaminant• Concentration levels in those systems

• Basis for determining violations of MCLs or TTs could be:– One-time exceedance– Failure to follow procedures required for exceedance– Average exceedance over a specified period of time

Source Water Protection

• What constitutes a source water protection area?

• What protection is provided?

– Watershed protection for surface water sources

– Wellhead protection for ground water sources

Monitoring Under SDWA

• Underground injection wells

• Public water systems– Finished water monitoring– PWS treatment process monitoring

Underground Injection Wells

• Monitor injection fluids

• Demonstrate mechanical integrity

• Ambient ground water monitoring, if necessary

Public Water System Monitoring

• Finished water monitoring– (MCLs and MRDLs)– Water receiving no treatment– Water with disinfection– Water receiving treatment and disinfection

• Raw water monitoring

• Water treatment process monitoring– Treatment techniques

Finished Water Monitoring Requirements Vary

• Source water type

• System type

• Contaminant group

• System size

• Sampling locations

How Often Must a System Monitor under SDWA?

• Bacteriological quality (coliform bacteria)– Ranges from daily to quarterly

• Turbidity– Ranges from daily or less to continuous

• Chemicals and radiologicals– Quarterly (less or more)

• Disinfectant residuals– Ranges from daily to monthly

• Disinfection byproducts (DBPs)– Ranges from 4 samples per quarter to 1 per quarter

Monitoring-General

• A system can remain on a monitoring schedule only if the sampling results support the schedule

• MCL exceedance?– Must begin quarterly sampling– Must continue until 4 consecutive quarterly

samples are below the MCL• NOTE: compliance determination based on annual

average

Unregulated Contaminant Monitoring Rule

• List of contaminants to monitor

• A schedule for sampling

• Analytical methods

• Reporting requirements– To regulatory agencies– To the public

PWSS Enforcement Provisions

• For EPA

– Streamlined processes

– Increased penalty caps

– Imposed enforcement moratorium for violations

remedied by system consolidation

• For PWSS primacy States

– Required PWSS primacy States to adopt

administrative penalty authority

Consumer Information – Right To Know

• 1996 Amendments mandate greater public involvement:– Consumer Confidence Reports– State source water protection plans– Intended Use Plans– National Drinking Water Advisory Council– Revised public notification requirements– Annual compliance reports– Negotiated rulemaking

Consumer Confidence Reports

• Easy-to-understand explanations of drinking water standards and health effects

• Information on the quality of the water system’s source and monitoring results

• Health effects information on any contaminant in violation of an EPA health standard

• Hotline number to address questions

Key Elements ofSDWA Protect

the Source

Protect Distributio

n & Storage

MonitorWater

Provide Treatment

SDWA Multiple Barrier

Approach

SetStandards

Is This a PWS?

Mountain View RV Park serves 150 RV slots. It includes a bath house, laundry and convenience store. It operates for only 4 months out of the year. It also maintains a dormitory for 26 employees.

This system is a PWSPWS because it regularly serves at least 25 people. The system is not a CWSCWS because is does not serve its customers year round. It is a TNCWSTNCWS, because it serves at least 60 days, but not 6 months. If the facility operated for at least 6 months, then the 26 employees living in the dormitory would result in classification as a NTNCWS.

Is This a PWS?Is This a PWS?

The Seaforth is a bar and restaurant. The building has a maximum occupancy of 80 people and is open all year. Three employees live in apartments above the serving area. Twenty campsites without water, sewer or electricity are located outside the establishment.

This system is a PWSPWS classified as a TNCWSTNCWS, because it does not serve 25 of the same people for at least 6 months of the year.

Is This a PWS?Is This a PWS?

This system is a PWSPWS classified as a NTNCWSNTNCWS, because the residential students are there more than 6 months. With only 12 employees, they do not qualify as a CWS.

Healing Waters operates a religious camp for the 4 summer months and is a residential religious school during 7 months of each year. There are 14 connections. The camp is closed during December each year for maintenance. The summer camp serves 70 campers for 7, 2-week sessions and the religious school provides classroom education for 45 residential students.

Is This a PWS?Is This a PWS?

This system is a PWSPWS classified as a NTNCWSNTNCWS, because there are more than 25 people regularly served at least 6 months of the year. It is not a CWSnot a CWS because the 2 homes serving year-round residents don’t serve 25 people.

Cherrywood is a wood products factory that employs 165 people. The facility works three, 8-hour shifts each day of the year. The plant manager and assistant manager are provided homes connected to the water system. The plant uses water for industrial water supply, a kitchen, bathroom, showers, and fire suppression purposes, in addition to domestic supply for all of the buildings.

Is This a PWS?Is This a PWS?

Bethesda Gardens is a retirement home that serves 110 residents. The business employs 60 people.

This system is a PWSPWS. It is also a CWSCWS because it serves at least 25 year-round residents.

Is This a PWS?Is This a PWS?

The Walnut Creek Apartments are a fourplex. The units are 2-bedroom apartments. The typical census is 7 to 10 residents.

This system is not a PWSnot a PWS because it does not have 15 connections, nor does it serve at least 25 people, 60 days out of the year.

Federal Water Pollution Control Act Federal Water Pollution Control Act AmendmentsAmendments

The Clean Water ActThe Clean Water Act

FWPCA Amendments of 1972

• States are primary implementers, with EPA oversight

• No right to pollute navigable waters of the U.S.

• Enforceable permits with discharge limits for point sources (NPDES)

• Baseline of “technology-based” controls, backed by “water quality-based” controls

FWPCA Amendments of 1972

• Strengthened enforcement authority, including citizen suits

• Greatly increased funding for municipal sewage systems

• Expanded requirements for WQS for all surface waters

• Established permit issuance authority for point sources

Key Term: Pollutant

• Dredged spoil, solid waste, incinerator residue, filter backwash, sewage sludge, munitions, chemical wastes, biological materials, some radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste

CWA Section 502(6)

Point Source

• Any discernable, confined, discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, rolling stock, concentrated animal feeding operation, some vessels, or other floating craft from which pollutants are or may be discharged

• Does not include return flows from irrigated agriculture

CWA Section 502(14)

FWPCA Goals

• "Restore and maintain the chemical, physical and biological integrity of the Nation's waters"

• "Water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" (fishable/swimmable goal)

1977 Clean Water Act

• Expanded limits to include toxic pollutants

• Established the section 404

dredge and fill program

1987 Water Quality Act

• State revolving fund• Water quality-based toxics controls• Sewage sludge (biosolids)

management• Storm water permits• Antidegradation policy• Nonpoint source programs• Treatment as a State for Tribes

Key Elements of the CWAKey Elements of the CWA

Develop Strategi

es

Implement

strategies

Monitor Results

Revise strategie

s, if needed

ConductMonitoring

CWA Goals

and WQS

CWA

CWA Goals and Water Quality Standards

• Technology-based

– Source > Pollutant > (Waterbody)

• Water quality-based

– Waterbody > Pollutant > Source

CWA: Part I, Technology-Based

• Point source discharges to surface waters through NPDES permitting

• Generally-applicable limits

• Discharge limits determined by technical and economic feasibility within each industrial grouping

CWA: Part II, Water- Quality Based

• Technology-based limits on existing and new point sources still apply

• Additional point source limits when WQS still not met after tech-based level of treatment

• New limits driven by WQS• Total Maximum Daily Load (TMDL) consistent

with meeting WQS set, then allocated among sources

Water Quality Standards

• Must address all surface waters (i.e., waters of US and State)

• Key elements– Designated uses– Water quality criteria (conditions supporting

DUs)– Antidegradation

• Optional provisions (e.g., exemptions)

WQS: Process• WQS established by States and Tribes• EPA must review and approve prior to

becoming effective• If EPA disapproves a State or Tribal WQS and

State or Tribe doesn't revise it, EPA promulgates a WQS

• Public review and comment at State, Tribal, and Federal levels (if EPA promulgates)

• States must review their WQS every three years and submit them to EPA

WQS: Designated Use Categories

• Drinking water– Treated or untreated

• Human contact– Noncontact, secondary,

primary• Fishing and eating • Aquatic life

– Warmwater species and habitat

– Coldwater species and habitat

• Agriculture water supply• Industrial water supply

WQS: Designating Waterbodies

The General Rules• Must designate all “existing” uses• Fishable/swimmable required, with rare

exceptions• Waste transport not OK• Multiple uses OK; “most sensitive use reigns”• Can consider economic factors• Must not preclude attainment of downstream

WQS

WQS: Water Quality Criteria (WQC)

• Consistent scientifically with protecting all designated uses

• Basic types of criteria– Narrative, numeric– Water column, sediment, fish tissue

• Categories of criteria– Aquatic life

• Pollutant-specific and aquatic community indices

– Human health (drinking, fish consumption)– Wildlife (semiaquatic, food chain effects)

§303(d) Process: Establishing TMDLs

A TMDL. . . . • Is a strategy for achieving WQS

• Is based on the relationship between pollutant sources and the condition of a waterbody

• Describes an allowable load and allocates it among several sources

TMDL Definition

TMDL =WLAi + LAi + MOS

WLAi: Sum of waste loads (point sources)

LAi: Sum of loads (nonpoint sources)

MOS: Margin of Safety

- Extra measure of protection due to uncertainty

- Can be explicit (e.g., 10%) or implicit (safety factors and assumptions in modeling, etc.)

n

i=1

n

i=1

TMDL “Caps”

• For specific pollutants– Sediment, nitrogen, phosphorus, temperature,

copper, mercury• For pollutant indicators

– BOD, COD• Not necessarily daily

– May be weekly, monthly, yearly• May vary seasonally

TMDL: Allocations

• Each point source with individual NPDES permit waste load allocation (WLA)

• Point sources covered under general permits: waste load allocation (WLA)

• Individual sources, categories, subcategories of nonpoint sources: load allocation (LA)

No EPA rules on how to allocate

TMDL Allocation

Point Source

1

(WLA)

Poin

t Sou

rce

2

(WLA

)

NPS

Source

Category

1(LA)

Subwatershed 1 MOS

Subwatershed 2

Reserve Capacity

Natural Background

NPS Source Category 2(LA)