Safe Drinking Water Act

EPA has issued standards for Cryptosporidium, Giardia lamblia, Legionella, coliform bacteria and enteric viruses. EPA also requires two microorganism-related tests to indicate water quality: plate count and turbidity.[10] The agency issued its initial Surface Water Treatment Rule in 1989, to address contamination from viruses, bacteria and Giardia lamblia.[12] The most recent amendment is the Long Term 2 Enhanced Surface Water Treatment Rule, promulgated in 2006, requiring public water systems to employ a Treatment Technique to control Cryptosporidium and other pathogens.[13]

EPA has issued standards for chlorine, monochloramine and chlorine dioxide.[10]

EPA has issued standards for bromate, chlorite, haloacetic acids and trihalomethanes.[10]

EPA has issued standards for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, copper, cyanide, fluoride, lead, mercury, nitrate, nitrite, selenium and thallium.[10]

EPA illustration of lead sources in residential buildings

The 1986 amendments require EPA to set standards limiting the concentration of lead in public water systems, and defines "lead free" pipes as:

(1) solders and flux containing not more than 0.2 percent lead;

(2) pipes and pipe fittings containing not more than 8.0 percent lead; and

(3) plumbing fittings and fixtures as defined in industry-developed voluntary standards (issued no later than August 6, 1997), or standards developed by EPA in lieu of voluntary standards.[14]

EPA issued an initial lead and copper regulation in 1991.[15] The regulation specifies a Treatment Technique rather than an MCL.[16]

Congress tightened the definition of "lead free" plumbing in a 2011 amendment to the Act. EPA published a final rule implementing the amendment on September 1, 2020.[17]

In response to the Flint, Michigan water crisis, EPA published revisions to the Lead and Copper Rule on January 15, 2021 addressing testing, pipe replacement and related issues. The rule mandates additional requirements for sampling tap water, corrosion control, public outreach and testing water in schools. The rule continues the requirement for replacement of lead service lines when the "action level" for lead is exceeded, but requires that a utility replace at least 3 percent of its lines annually, compared to 7 percent under the prior regulation.[18][19] Several citizen and environmental groups immediately filed lawsuits challenging the rule.[20] On March 12, 2021 EPA delayed the effective date of the rule to June 17, 2021.[21]

EPA has issued standards for 53 organic compounds, including benzene, dioxin (2,3,7,8-TCDD), PCBs, styrene, toluene, vinyl chloride and several pesticides.[10]

EPA has issued standards for alpha particles, beta particles and photon emitters, radium and uranium.[10] EPA proposed regulations for radon in 1991 and 1999.[22]

The SDWA requires EPA to identify and list unregulated contaminants which may require regulation. The Agency must publish this list, called the Contaminant Candidate List (CCL) every five years. EPA is required to decide whether to regulate at least five or more listed contaminants. EPA uses this list to prioritize research and data collection efforts, which support the regulatory determination process.[30]

As of 2021, EPA has developed four CCLs:

• CCL1: 50 chemical and 10 microbiological contaminants/contaminant groups were listed in 1998.[31] In 2003 EPA made a determination that no regulatory action was needed on nine of these contaminants.[32]
• CCL2: EPA carried forward the remaining 51 contaminants from CCL1 for consideration in 2005.[33] In 2008 EPA determined that no regulatory action was needed on 11 of these contaminants.[34]
• CCL3: EPA revised its listing process, based on recommendations from the National Research Council and the National Drinking Water Advisory Council (a Federal Advisory Committee). It expanded its initial review to 7,500 potential chemical and microbial contaminants, and subsequently narrowed this universe to a list of 600 for further evaluation. 104 chemicals or chemical groups and 12 microbiological contaminants were listed in 2009.[35][36] In 2011 EPA announced it would develop regulations for perchlorate, which had been listed beginning with CCL1.[37][38] In 2016 EPA determined that no regulatory action was needed on four other listed contaminants, and delayed determination on a fifth contaminant, in order to review additional data.[39]
• CCL4: EPA carried forward the CCL3 contaminants for which determinations had not been made, and requested public comment on additional contaminants. 97 chemicals or chemical groups and 12 microbial contaminants were listed in 2016.[40][41] In March 2021 EPA announced that it would develop regulations for two of the CCL4 contaminants: PFOA and PFOS.[42]

On December 27, 2021 EPA published a regulation requiring drinking water utilities to conduct monitoring for 29 PFAS compounds and lithium. The data are to be collected during 2023 to 2025. EPA will pay for the monitoring costs for small drinking water systems (those serving a population of 10,000 or fewer). The agency may use the monitoring data to develop additional regulations.[43][44]

The Natural Resources Defense Council (NRDC) filed a lawsuit in 2016 to accelerate EPA's regulatory process on perchlorate. Following a consent decree issued by a federal district court in New York,[45] EPA published a proposed rule on June 26, 2019, with a proposed MCL of 0.056 mg/L.[46]

On June 18, 2020 EPA announced that it was withdrawing its 2019 proposal and its 2011 regulatory determination, stating that it had taken "proactive steps" with state and local governments to address perchlorate contamination.[47] In September 2020 NRDC filed suit against EPA for its failure to regulate perchlorate, and stated that 26 million people may be affected by perchlorate in their drinking water.[48]

In March 2020 EPA announced its proposed regulatory determinations for two PFAS in drinking water. In a Federal Register notice published as a follow-up to CCL4, the agency requested public comment on regulating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).[49] In March 2021 EPA announced that it would develop regulations for PFOA and PFOS.[42]

Future NPDWR standards will apply to non-transient non-community water systems (for example, some schools, factories, office buildings, and hospitals that operate their own water systems) because of concern for the long-term exposure of a stable population. It is important to note that EPA's decision to apply future NPDWRs to non-transient non-community water systems may have a significant impact on Department of Energy facilities that operate their own drinking water systems.

The SDWA prohibits any underground injection which endangers drinking water sources.[58] The Ninth Circuit United States Court of Appeals while enforcing this prohibition of "harmful injections into drinking water aquifers" explains that underground injection of even clean water can result in the illegal movement of a fluid containing a contaminant into an USDW:

The SDWA and its implementing regulations are not concerned with whether an injected fluid is itself contaminated. Rather, they are concerned with the result of "injection activity." A permit applicant must show that the proposed activity will not allow "the movement of fluid containing [a] contaminant." Id. Injections of clean water into the ground can cause the movement of contaminants into an aquifer. For example, contaminants may dissolve into clean water as the injected water passes through the soil on its way to an aquifer.[59]^: 1077

Underground fluid injection can have disastrous consequences for drinking water and, in turn, for human health. Injected fluid is hard to trace once it enters the ground, and polluted aquifers are hard to remediate. Congress' cautious "preventive" approach requires permit applicants to show that their injections will not harm underground sources of drinking water. It presumes, until an applicant shows otherwise, that injections will contaminate an USDW. Although this approach may result in forbidding some injections that would not contaminate an USDW, it is a valid exercise of Congress' authority.[59]^: 1080

EPA poster illustrating UIC well classes

The 1974 SDWA authorized EPA to regulate injection wells in order to protect underground sources of drinking water.[60] The UIC permit system is organized into six classes of wells.[61]

• Class I. Industrial waste (hazardous and non-hazardous) and municipal wastewater disposal wells
• Class II. Oil and gas related injection wells (except wells solely used for production; see Hydraulic fracturing exemption)
• Class III. Solution mining wells
• Class IV. Shallow hazardous and radioactive waste injection wells (no longer permitted)
• Class V. Wells that inject non-hazardous fluids into or above underground sources of drinking water
• Class VI. Geologic sequestration wells for carbon dioxide.

EPA has granted UIC primacy enforcement authority to 34 states for Class I, II, III, IV and V wells. Seven additional states and two tribes have been granted primacy authority for Class II wells only. EPA manages enforcement of Class VI wells directly.[62]

If a state does not take appropriate enforcement action then EPA must issue an order requiring a violator to comply with the requirements, or the agency will initiate a civil enforcement action. The SDWA directly provides for citizen civil actions.[63]

Congress amended the SDWA in 2005 to exclude hydraulic fracturing, an industrial process for recovering oil and natural gas, from coverage under the UIC program, except where diesel fuels are used.[64][65] This exclusion has been called the "Halliburton Loophole". Halliburton is the world's largest provider of hydraulic fracturing services.[66] The measure was a response to a recommendation from the Energy Task Force, chaired by Vice President Dick Cheney in 2001.[67] (Cheney had been Chairman and CEO of Halliburton from 1995 to 2000.[68])

The act requires states to establish wellhead protection programs to protect underground sources of drinking water. Wellhead protection programs must specify the duties of agencies, determine the wellhead protection areas, identify sources of contaminants, implement control measures to protect the wellhead protection areas, and a contingency plan for alternative drinking water supplies in the event of contamination. Federal agencies having jurisdiction over potential sources of contaminants must comply with all requirements of the state wellhead protection program.[69]

The "Updated Guidance on Invoking Emergency Authority Under Section 1431 Of The Safe Drinking Water Act" shows that 42 U.S.C. § 300i gives the EPA Administrator broad power to protect public water systems and underground sources of drinking water (USDWs).[70]^: 3 This guidance encourages more widespread use of the EPA's emergency powers.[70]^: 3 This emergency power is granted when the Administrator receives "information that a contaminant which is present in or likely to enter a public water system or an underground source of drinking water ... which may present an imminent and substantial endangerment to the health of persons" and that appropriate agencies have not acted.[70]^: 6–7 Since this emergency power protection applies to all USDWs it includes potential future supplies of public water and even private wells.[70]^: 7–8 The imminent endangerment includes contaminants that lead to chronic health effects that may not be realized for years such as lead and carcinogens.[70]^: 9–10 To prevent harm from occurring the EPA Administrator may issue administrative orders or commence civil actions even without absolute proof.[70]^: 11

Whenever EPA finds a violation of the UIC Program and the State does not or cannot act, the agency must issue an administrative order or to file a civil action to require compliance.[71]

A citizen can file a petition for judicial review of EPA final actions.[72] A citizen may also file against any violator of the SDWA or against EPA for failure to take action under the SDWA which is not discretionary. EPA emergency administrative orders are also final actions subject to judicial review.[73]

In 2004, EPA tested drinking water quality on commercial aircraft and found that 15 percent of tested aircraft water systems tested positive for total coliform bacteria. EPA published a final regulation for aircraft public water systems in 2009. The regulation requires air carriers operating in the U.S. to conduct coliform sampling, management practices, corrective action, public notification, operator training, and reporting and recordkeeping. An airline with a non-complying aircraft must restrict public access to the on-board water system for a specified period.[74]

The SDWA requires each state to delineate the boundaries of areas that public water systems use for their sources of drinking water—both surface and underground sources.[75] Within each source area the origins of regulated contaminants are identified in order to determine the susceptibility of the public water systems. This information can help communities understand the risks to their sources of drinking water.[76]

The SDWA includes a whistleblower protection provision.[77] Employees in the US who believe they were fired or suffered another adverse action related to enforcement of this law have 30 days to file a written complaint with the Occupational Safety and Health Administration.

Prior to the SDWA there were few national enforceable requirements for drinking water. In 1914 the U.S. Public Health Service (PHS) published a set of drinking water standards, pursuant to existing federal authority to regulate interstate commerce, and in response to the 1893 Interstate Quarantine Act.[78] As such the standards were directly applicable only to interstate common carriers such as railroads. For local drinking water utilities, these standards were basically recommendations and not enforceable requirements. However, many municipal utlities began to voluntarily adopt the standards.[79][80]

Improvements in chemical testing methods in the 1970s, particularly for synthetic organic chemicals, allowed for the detection of smaller concentrations of contaminants.[81][82]

Under state programs, some water works managers mistakenly believed that the major, real threats were behind them and their primary focus was on providing consistent and effective service through aging infrastructure, with major efforts at maintaining the bacteriological quality of drinking water.[83]

The Safe Drinking Water Act was one of several pieces of environmental legislation in the 1970s. Discovery of contamination from organic chemicals in public water systems and the lack of enforceable, national standards persuaded Congress to take action.

The 1974 law very clearly defined roles and responsibilities, giving EPA the job of generating scientifically based standards that would be applicable to all water supplies that served 25 or more customers and creating a process for setting new standards. EPA was mandated to contract with the National Academy of Sciences (NAS) for a major study of contaminants in drinking water that might have health significance and to issue revised regulations once the NAS report was completed.[84]

The 1986 SDWA amendments required EPA to apply future NPDWRs to both community and non-transient non-community water systems when it evaluated and revised current regulations.[1] The first case in which this was applied was the "Phase I" final rule, published on July 8, 1987.[85] At that time NPDWRs were promulgated for certain synthetic volatile organic compounds and applied to non-transient non-community water systems as well as community water systems. This rulemaking also clarified that non-transient non-community water systems were not subject to MCLs that were promulgated before July 8, 1987. The 1986 amendments were signed into law by President Ronald Reagan on June 19, 1986.

In addition to requiring more contaminants to be regulated, the 1986 amendments included:

• Wellhead protection[69]
• New monitoring for certain substances
• Filtration for certain surface water systems[86]
• Disinfection for certain groundwater systems
• Restriction on lead in solder and plumbing[14]
• More enforcement powers.[87]

President Bill Clinton signs the Safe Drinking Water Amendments Act of 1996 in the East Room

In 1996, Congress amended the Safe Drinking Water Act to emphasize sound science and risk-based standard setting, small water supply system flexibility and technical assistance, community-empowered source water assessment and protection, public right-to-know, and water system infrastructure assistance through a multibillion-dollar state revolving loan fund. The amendments were signed into law by President Bill Clinton on August 6, 1996.[2]

1. Consumer Confidence Reports. All community water systems must prepare and distribute annual reports about the water they provide, including information on detected contaminants, possible health effects, and the water source(s) for the system.
2. Cost-Benefit Analysis. EPA must conduct a thorough cost-benefit analysis for every new standard to determine whether the benefits of a drinking water standard justify the costs.
3. Drinking Water State Revolving Fund. States can use this fund to help water systems make infrastructure or management improvements or to help systems assess and protect their source water.[88]
4. Microbial Contaminants and Disinfection Byproducts. EPA is required to strengthen protection for microbial contaminants, including cryptosporidium, while strengthening control over the byproducts of chemical disinfection. EPA promulgated the Stage 1 Disinfectants and Disinfection Byproducts Rule[89] and the Interim Enhanced Surface Water Treatment Rule[90] to address these risks.
5. Operator Certification. Water system operators must be certified to ensure that systems are operated safely. EPA issued guidelines in 1999 specifying minimum standards for the certification and recertification of the operators of community and non-transient, noncommunity water systems.[91] These guidelines apply to state operator certification programs. All states are currently implementing EPA-approved operator certification programs.
6. Public Information and Consultation. The SDWA emphasizes that consumers have a right to know what is in their drinking water, where it comes from, how it is treated, and how to help protect it. EPA distributes public information materials on its website and holds public meetings, working with states, tribes, local water systems, and environmental and civic groups, to encourage public involvement.
7. Small Water Systems. Small water systems are given special consideration and resources under SDWA, to make sure they have the managerial, financial, and technical ability to comply with drinking water standards.

Through the Energy Policy Act of 2005, the Safe Drinking Water Act was amended to exclude the underground injection of any fluids or propping agents other than diesel fuels used in hydraulic fracturing operations from being considered as "underground injections" for the purposes of the law.[64]

Congress passed the Reduction of Lead in Drinking Water Act in 2011. This amendment, effective in 2014, tightened the definition of "lead-free" plumbing fixtures and fittings.[92]

The Drinking Water Protection Act was enacted on August 7, 2015.[93] It required EPA to submit to Congress a strategic plan for assessing and managing risks associated with algal toxins in drinking water provided by public water systems. EPA submitted the plan to Congress in November 2015.[94]

The Grassroots Rural and Small Community Water Systems Assistance Act was signed by President Barack Obama on December 11, 2015. The amendment provides technical assistance to small public water systems, to help them comply with National Primary Drinking Water Regulations.[95]

The Water Infrastructure Improvements for the Nation Act added several provisions to the SDWA, along with providing financial assistance to the city of Flint, Michigan in responding to its lead contamination crisis, as well as assistance for other communities. The provisions include:

• expanding the water infrastructure public-private partnership loan program
• requiring public notification when household drinking water contains lead levels above the EPA action level (currently 0.015 mg/L)
• establishing a voluntary program for testing for lead in drinking water at schools and childcare centers
• creating a public information clearinghouse on alternative drinking water delivery systems.[96]

• America's Water Infrastructure Act of 2018[97]