# Safe Drinking Water Act, United States

April 13, 2011, 7:03 pm
Source: Crs
 Topics:

Source: Eyesore/Flickr

The Safe Drinking Water Act (SDWA), Title XIV of the Public Health Service Act, is the key federal law for protecting public water supplies from harmful contaminants. First enacted in 1974 and substantively amended in 1986 and 1996, the act is administered through programs that establish standards and treatment requirements for public water supplies, control underground injection of wastes, finance infrastructure projects, and protect sources of drinking water. The 1974 law established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program. The stateadministered Public Water Supply Supervision (PWSS) Program remains the basic program for regulating the nation’s public water systems, and 49 states have assumed this authority. SDWA appropriations were authorized through FY2003.

## History

 Year Act Public Law Number 1974 Safe Drinking Water Act of 1974 P.L. 93-523 1977 Safe Drinking Water Act Amendments of 1977 P.L. 95-190 1979 Safe Drinking Water Act Amendments P.L. 96-63 1980 Safe Drinking Water Act Amendments P.L. 96-502 1986 Safe Drinking Water Act Amendments of 1986 P.L. 99-339 1988 Lead Contamination Control Act of 1988 P.L. 100-572 1996 Safe Drinking Water Act Amendments of 1996 P.L. 104-182 2002 Public Health Security and Bioterrorism Preparedness and Response Act of 2002 P.L. 107-188

## Background

As indicated in Table 1, the Safe Drinking Water Act has been amended several times since enactment of the Safe Drinking Water Act of 1974 (P.L. 93-523). Congress enacted P.L. 93-523 after nationwide studies of community water systems revealed widespread water quality problems and health risks resulting from poor operating procedures, inadequate facilities, and poor management of public water supplies in communities of all sizes. The 1974 law gave the Environmental Protection Agency (EPA) substantial discretionary authority to regulate drinking water contaminants and gave states the lead role in implementation and enforcement.

The first major amendments (P.L. 99-339), enacted in 1986, were largely intended to increase the pace at which EPA regulated contaminants. From 1974 until 1986, EPA had regulated just one additional contaminant beyond the 22 standards previously developed by the Public Health Service. The 1986 amendments required EPA to (1) issue regulations for 83 specified contaminants by June 1989 and for 25 more contaminants every three years thereafter, (2) promulgate requirements for disinfection and filtration of public water supplies, (3) ban the use of lead pipes and lead solder in new drinking water systems, (4) establish an elective wellhead protection program around public wells, (5) establish a demonstration grant program for state and local authorities having designated sole-source aquifers to develop groundwater protection programs, and (6) issue rules for monitoring injection wells that inject wastes below a drinking water source. The amendments also increased EPA’s enforcement authority.

The Lead Contamination Control Act of 1988 (P.L. 100-572) added a new Part F to the SDWA. These provisions were intended to reduce exposure to lead in drinking water by requiring the recall of lead-lined water coolers, and requiring EPA to issue a guidance document and testing protocol for states to help schools and day care centers identify and correct lead contamination in school drinking water.

After the regulatory schedule mandated in the 1986 amendments proved to be unworkable for EPA, states and public water systems, the 104th Congress made sweeping changes to the act with the SDWA Amendments of 1996 (P.L. 104-182). As over-arching themes, these amendments aimed to target resources to address the greatest health risks, add some regulatory flexibility, provide funding for federal drinking water mandates, and improve water systems’ compliance capacity. The amendments revoked the requirement that EPA regulate 25 new contaminants every three years, and provided a risk-based approach for selecting contaminants for regulation. Among other changes, Congress added some flexibility to the standard-setting process, required EPA to conduct health risk reduction and cost analyses for most new standards, authorized a state revolving loan fund (SRF) program to help public water systems finance projects needed to meet SDWA requirements, added programs to improve small system compliance, expanded consumer information requirements, increased the act’s focus on pollution prevention through a voluntary source water protection program, and streamlined the act’s enforcement provisions. P.L. 104-182 extended authorizations for appropriations under the act through FY2003.

In June 2002, drinking water security provisions were added to the SDWA through the Public Heath Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188). Key provisions of the act include requirements for community water systems serving more than 3,300 individuals to conduct vulnerability assessments and prepare emergency preparedness and response plans and requirements for EPA to conduct research on preventing and responding to terrorist or other attacks.

## National Drinking Water Regulations

A key component of the SDWA is the requirement that EPA promulgate national primary drinking water regulations for contaminants that may pose health risks and that are likely to be present in public water supplies. Section 1412 instructs EPA on how to select contaminants for regulation and specifies how EPA must establish regulations once a contaminant has been selected. The regulations apply to the roughly 168,000 privately and publicly owned water systems that provide piped water for human consumption to at least 15 service connections or that regularly serve at least 25 people. EPA has issued regulations for roughly 90 contaminants.

## Contaminant Selection and Regulatory Schedules

Section 1412, as amended in 1996, directs EPA to select contaminants for regulatory consideration based on occurrence, health effects, and meaningful opportunity for health risk reduction. Starting in 1998, and every five years thereafter, EPA must publish a list of contaminants that may warrant regulation. Starting in 2001, and every five years thereafter, EPA must determine whether or not to regulate at least five of the listed contaminants. The act requires EPA to evaluate contaminants that present the greatest health concern and to regulate contaminants that occur at concentration levels and frequencies of public health concern. The amendments also included schedules for EPA to complete regulations for specific contaminants (i.e., radon, arsenic, disinfectants and disinfection byproducts, and Cryptosproridium).

### Standard Setting

For each contaminant that EPA determines requires regulation, EPA must set a non-enforceable maximum contaminant level goal (MCLG) at a level at which no known or anticipated adverse health effects occur and which allows an adequate margin of safety. EPA must then set an enforceable standard, a maximum contaminant level (MCL), as close to the MCLG as is “feasible” using best technology, treatment techniques, or other means available (taking costs into consideration). EPA generally sets standards based on technologies that are affordable for large communities; however, under P.L. 104-182, EPA is now required, when issuing a regulation for a contaminant, to list any technologies or other means that comply with the MCL and that are affordable for three categories of small public water systems (serving populations of 10,000 or fewer). If EPA does not identify technologies that are affordable for small systems, then EPA must identify small system “variance” technologies or other means that may not achieve the MCL but are protective of public health.

Another provision added in 1996 requires EPA, when proposing a regulation, to publish a determination as to whether or not the benefits of the standard justify the costs. If EPA determines that the benefits do not justify the costs, EPA may, with certain exceptions, promulgate a standard that maximizes health risk reduction benefits at a cost that is justified by the benefits. New SDWA regulations generally become effective three years after promulgation. Up to two additional years may be allowed if EPA (or a state in the case of an individual system) determines the time is needed for capital improvements. Section 1448 outlines procedures for judicial review of EPA actions involving the establishment of SDWA regulations and other final EPA actions.

### Risk Assessment

The 1996 amendments also added risk assessment and risk communication provisions to SDWA. When developing regulations, EPA is required to (1) use the best available, peer-reviewed science and supporting studies and data; and (2) make publicly available a risk assessment document that discusses estimated risks, uncertainties, and studies used in the assessment. When proposing drinking water regulations, EPA must publish a health risk reduction and cost analysis (HRRCA). EPA may promulgate an interim standard without first preparing this benefit-cost analysis or making a determination as to whether the benefits of a regulation would justify the costs if EPA determines that a contaminant presents an urgent threat to public health.

### Variances and Exemptions

In anticipation that some systems, particularly smaller ones, could have difficulty complying with every regulation, Congress included in the SDWA provisions for variances and exemptions. Section 1415 authorizes a state to grant a public water system a variance from a standard if raw water quality prevents the standard from being met despite application of best technology, and the variance does not result in an unreasonable risk to health. A 1996 provision (Subsection 1415(e)) authorizes variances specifically for small systems based on application of best affordable technology.

When developing a regulation, if EPA cannot identify a technology that meets the standard and is affordable for small systems, EPA must identify variance technologies that are affordable but do not necessarily meet the standard. In cases where EPA has identified variance technologies, states may grant small system variances to systems serving 3,300 or fewer persons if the system cannot afford to comply with a standard (through treatment, an alternative water source, or restructuring) and the variance ensures adequate protection of public health. States also may grant these variances to systems serving between 3,301 and 10,000 persons with EPA approval. To receive a small system variance, the system must install a variance technology.

Section 1416 authorizes states to grant public water systems temporary exemptions from standards or treatment techniques if a system cannot comply for other compelling reasons (including costs). An exemption is intended to give a water system more time to comply with a regulation and can be issued only if it will not result in an unreasonable health risk. A qualified system may receive an exemption for up to three years beyond the compliance deadline. Systems serving 3,300 or fewer persons may receive a maximum of three additional two-year extensions, for a total exemption duration of nine years.

## State Revolving Funds

In 1996, Congress authorized a drinking water state revolving loan fund (DWSRF) program to help systems finance improvements needed to comply with SDWA regulations (Section 1452). EPA is authorized to make grants to states to capitalize DWSRFs, which states then may use to make loans to public water systems. States must match 20% of the federal grant, and grants are allotted among the states based on the results of the latest quadrennial needs survey. Each state and the District of Columbia must receive at least 1% of the appropriated funds. A state may transfer up to 33% of the grant to the Clean Water Act (CWA) SRF, or an equivalent amount from the CWA SRF to the DWSRF through FY2002. This authority has been extended in subsequent appropriations acts.

DWSRFs may be used to provide loans for expenditures EPA has determined will facilitate compliance or significantly further the act’s health protection objectives. States must make available 15% of their annual allotment for loan assistance to systems that serve 10,000 or fewer persons, to the extent that funds can be obligated for eligible projects. States may use up to 30% of their DWSRF grant to provide loan subsidies (including forgiveness of principal) to help economically disadvantaged communities. Also, states may use a portion of funds for technical assistance, source water protection and capacity development programs, and for operator certification. The law authorized appropriations of $599 million for FY1994 and$1 billion per year for FY1995 through FY2003 for the DWSRF program.

## Drinking Water Security

The 107th Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188). Title IV of the Bioterrorism Act amended the SDWA to address threats to drinking water security. Key provisions are summarized below.

### Vulnerability Assessments

Section 1433 was added to SDWA, requiring each community water system serving more than 3,300 individuals to conduct an assessment of the system’s vulnerability to terrorist attacks or other intentional acts to disrupt the provision of a safe and reliable drinking water supply. This provision established deadlines, based on system size, for community water systems to certify to EPA that they had conducted a vulnerability assessment and to submit to EPA a copy of the assessment. The law required all these systems to complete vulnerability assessments by June 30, 2004, or earlier. Section 1433 exempts the contents of the vulnerability assessments from disclosure under the Freedom of Information Act (except for information contained in the certification identifying the system and the date of the certification), and provides for civil and criminal penalties for inappropriate disclosure of information by government officials.

In addition, Section 1433 required each community water system serving more than 3,300 individuals to prepare or revise an emergency response plan incorporating the results of the vulnerability assessment. EPA was required to provide guidance to smaller systems on how to conduct vulnerability assessments, prepare emergency response plans, and address threats.

The act authorized $160 million for FY2002, and such sums as may be necessary for FY2003 through FY2005, to provide financial assistance to community water systems to conduct vulnerability assessments, to prepare response plans, and to address basic security enhancements and significant threats. The Bioterrorism Act also added new SDWA Sections 1434 and 1435 directing the EPA Administrator to review methods by which terrorists or others could disrupt the provision of safe water supplies. EPA was required to review methods for preventing, detecting, and responding to such disruptions, and methods for providing alternative drinking water supplies if a water system was destroyed or impaired. The act authorized$15 million for FY2002, and such sums as may be necessary for FY2003 through FY2005 to carry out these sections.

### Emergency Powers

Under Section 1431, the Administrator has emergency powers to issue orders and commence civil action if (1) a contaminant likely to enter a public water supply system poses a substantial threat to public health, and (2) state or local officials have not taken adequate action. The Bioterrorism Act amended this section to specify that EPA’s emergency powers include the authority to act when there is a threatened or potential terrorist attack or other intentional act to disrupt the provision of safe drinking water or to impact the safety of a community’s water supply.

### Tampering with Public Water Systems

Section 1432 provides for civil and criminal penalties against any person who tampers, attempts to tamper, or makes a threat to tamper with a public water system. Amendments made by the Bioterrorism Act increased criminal and civil penalties for tampering, attempting to tamper, or making threats to tamper with public water supplies. The maximum prison sentence for tampering was increased from 5 to 20 years. The maximum prison sentence for attempting to tamper, or making threats to tamper, was increased from 3 to 10 years. The maximum fine that may be imposed for tampering was increased from $50,000 to$1 million. The maximum fine for attempting to tamper, or threatening to tamper, was increased from $20,000 to$100,000.

SDWA Subsection 1442(b) authorizes EPA to provide technical assistance and to make grants to states and public water systems to assist in responding to and alleviating emergency situations. The Bioterrorism Act amended Subsection 1442(d) to authorize appropriations for such emergency assistance of not more than $35 million for FY2002, and such sums as may be necessary for each fiscal year thereafter. ## Other Selected Provisions Section 1417 prohibits the use of pipe, solder, or flux that is not “lead free” (as defined by the SDWA) in the installation or repair of public water systems or plumbing in residential or other facilities providing drinking water. It prohibits the sale of pipes and plumbing fixtures that are not lead free, and the sale of solder or flux that is not lead free (unless it is properly labeled), with the exception of pipes used in manufacturing or industrial processing. (For purposes of Section 1417, the term “lead free” refers to solders and flux containing not more than 0.2% lead, and refers to pipes and pipe fittings containing not more than 8.0% lead.) The 1996 Amendments also required limits to be set on the amount of lead that may leach from new plumbing fixtures. Section 1442 authorizes EPA to conduct research on the causes, treatment, control, and prevention of diseases resulting from contaminants in water. Section 1442(b) authorizes EPA to make grants and provide technical assistance to states or public water systems to assist them in responding to emergency situations;$35 million are authorized to be appropriated each year for this purpose. Section 1442(e) authorized \$15 million for each year, through FY2003, for EPA to provide technical assistance to small public water systems and Indian Tribes to help them comply with SDWA regulations. Section 1458 directed EPA to conduct studies regarding subpopulations at greater risk, biological mechanisms, and waterborne disease occurrences.

Section 1447 provides that any federal agency having jurisdiction over federally owned and maintained public water systems must comply with all federal, state and local drinking water requirements as well as any underground injection control programs. The President may exempt a facility from compliance with a requirement if he determines it to be in the paramount interest of the country to do so. Exemptions last one year, but additional exemptions may be granted. Under Section 1457, EPA may use the estrogenic substances screening program created in the Food Quality Protection Act of 1996 (P.L. 104-170) to provide for testing of substances that may be found in drinking water, if the Administrator determines that a substantial population may be exposed to such substances.

 Disclaimer: This article is taken wholly from, or contains information that was originally published by, the Congressional Research Service. Topic editors and authors for the Encyclopedia of Earth may have edited its content or added new information. The use of information from the Congressional Research Service should not be construed as support for or endorsement by that organization for any new information added by EoE personnel, or for any editing of the original content.

Notes: The first version of this article was drawn from  the Congressional Research Service Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency by David M. Bearden, Claudia Copeland, Linda Luther, James E. McCarthy, Linda-Jo Schierow, and Mary Tiemann (October 8, 2010).

Glossary