Water Laws and Regulations

1. 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

2. Course Link http://courses.washington.edu/h2owaste/

3. 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

4. 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

5. 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

6. 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

7. Water Regulation: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

8. EPA Established • Drinking water program moved from Public Health Service to EPA • First inventory of community water systems conducted EPA established December 2, 1970

9. Post-EPA History of Water Regulation Safe Drinking Water Act SDWA Amendments Oil Pollution Act 1972 1977 1987 1996 1970 1974 1986 1990 FWPCA Amendments Clean Water Act CWA Amendments SDWA Amendments Coastal Zone Management Act Marine Protection, Research and Sanctuaries Act

11. 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

12. 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)

13. Common Processes Between CWA and SDWA • Primacy or authorization • Permitting • Enforcement • Setting risk-based standards

14. Primacy/Authorization Approval Process State submits request EPA promulgates new regs State adopts regs EPA notice and comment EPA review and determination EPA approves or disapproves

15. Who is Eligible for Primacy/Authorization? District of Columbia Tribes 50 States Puerto Rico American Samoa and Former Trust Territories Guam Northern Marianas Virgin Islands

16. Tribal Status under SDWA and the CWA • Treaties formalize a nation-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

17. Federal program Primacy program Status of PWSS Primacy

18. Base, FF, PT, Gen • Base, FF, PT, Gen, Bio • Base, Gen • Base, PT, Gen • Base, FF, Gen Status of NPDES Authorization

19. 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 Federal, State and Tribal Roles

20. 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

21. OF VIOLATION 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

22. Enforcement • Formal enforcement actions • Administrative orders and penalties • Civil actions • Criminal actions

23. Enforcement • Referral to EPA for enforcement • Joint EPA-State enforcement actions • Independent EPA enforcement actions • Citizen suits

24. Enforcement Penalties

25. 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

26. Quiz • Who is eligible for primacy/authorization under both SDWA and the CWA? States, Tribes and territories

27. Quiz The four key processes common to SDWA and the CWA are: • Primacy/authorization • Permitting • Enforcement • Risk-based standard setting

28. An Overview of the Safe Drinking Water Act

29. 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)

30. Provisions of 1974 SDWA • Gave EPA authority to set drinking water standards • Recommended Maximum Contaminant Level (RMCL) • Maximum Contaminant Level (MCL) • Treatment technique

31. 1986 SDWA Amendments • Prescriptive • Tight deadlines • 83 contaminants in 3 years • Additional 25 contaminants every 3 years • Added ground water protection program • Wellhead protection

32. 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

33. 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

34. 1996 Safe Drinking Water Act Amendments CONCERN PROVISION Remove mandatory contaminants Burdensome regulatory structure Source water protection Insufficient State funding DWSRF and set-asides Enforcement-based approach Enforcement flexibility; capacity development Inadequate public access to information Consumer information and right-to-know

35. What Is a Water System and How Is it Regulated?

36. 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

37. SDWA Programs Today • Protect public health through: • Contaminant standard setting • Source water protection • Underground injection control • Public water system supervision

38. 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

39. Establishing Standards Step 1 Determining Contaminants Step 2 Establishing Priorities Step 3 Developing Regulations

40. Selecting Contaminants for Regulation Public Input Contaminant Candidate List Updated Every 5 Years (Currently 50 chemicals, 10 microbials) Regulatory Determination on Five Contaminants Every 5 Years Sound Science

41. Establishing Standards –Setting Priorities Unregulated Contaminant Monitoring Regulation CCL Health Effects Studies Health Risks Occurrence Data Regulation? National Contaminant Occurrence Database Human Exposure

42. 6-Year Review Cycle • SDWA Requires Review of Existing Regulations • E.g. The Total Coliform Rule is Under Review • http://www.epa.gov/ogwdw000/disinfection/tcr/regulation_revisions.html

43. 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

44. 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

45. 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

46. Source Water Protection • What constitutes a source water protection area? • What protection is provided? • Watershed protectionfor surface water sources • Wellheadprotection for ground water sources

47. Monitoring Under SDWA • Underground injection wells • Public water systems • Finished water monitoring • PWS treatment process monitoring

48. Underground Injection Wells • Monitor injection fluids • Demonstrate mechanical integrity • Ambient ground water monitoring, if necessary

49. 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

50. Finished Water Monitoring Requirements Vary • Source water type • System type • Contaminant group • System size • Sampling locations