The Association of State Drinking Water Administrators (ASDWA) is pleased to provide written testimony to the Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Drinking Water on implementation of the Safe Drinking Water Act (SDWA) of 1996. ASDWA represents the 56 states and territorial drinking water programs directly responsible for implementing the provisions of the SDWA. States currently regulate approximately 170,000 public water systems that deliver drinking water to over 273 million people nationwide.
Summary
The Successes
ASDWA is pleased to report that the states, EPA, and the water utilities nationwide have made significant progress in implementing the numerous new provisions of the SDWA over the last two and one half years. All states now have drinking water state revolving loan programs in place and to date, 354 loans have been made totaling around $850 million. This number also includes funds being leveraged by several states. Fifty-two states and territories met the February 6, 1999 deadline to submit source water assessment and delineation programs to EPA for final review and approval. The remaining states are completing their public involvement process and will be submitting their programs in the near future.
All states have completed and published two state annual compliance reports to provide specific drinking water compliance information to the public. States are currently working on the third report which is due by July 1 to EPA. Five state programs to prevent the formation of new non-viable water systems have been formally approved by EPA and 36 are on track to meet the deadline for this requirement. States are actively seeking new administrative penalty authorities as well.
States have also been very active in the numerous stakeholder committees giving thousands of hours of their time working with EPA and others to develop many of these new programs as well as working on the Unregulated Contaminant Monitoring Rule, the Interim Enhanced Surface Water Treatment Rule, the Stage 2 D/DBP Rule, the Consumer Confidence Report Rule, the Radionuclides and Radon Multi-Media Regulations, the Arsenic Rule, Operator Certification Guidelines, and modifications to the Lead and Copper Rule to name just a few. States are also working on the National Ground Water Report due to Congress in August 1999 and are working diligently with EPA and other interested stakeholders in developing and implementing a data reliability action plan to significantly improve the quality of the drinking water data provided to the public. All of this work has been accomplished in addition to states continuing to implement the numerous pre-1996 provisions of the law.
The Challenges
All of this new work represents an enormous challenge for state drinking water programs as they continue to implement the many rules established before the 1996 Amendments to the law. These challenges cannot be met without the assistance of all the stakeholders who had a hand in the law's creation. This assistance must include adequate funding, technical assistance, support, flexibility, and reasoned and rational implementation requirements and schedules. Specifically, states are concerned about funding and staff resources, state input into the regulatory development process, the timing of the various new programs, identifying priorities among all of the new requirements, and the establishment of artificial barriers that may significantly hinder full and effective implementation.
In order to be successful, states believe that a reasoned, rational approach to implementation requirements and schedules must be adhered to. States have already been put in a position where one new regulation - the Consumer Confidence Report Rule- will become effective before many have their own state rules in place. This leads to confusion on the part of the water utilities and public as to which agency - the state or Federal Government- is responsible for implementing the provisions in the rule. This rule also establishes artificial barriers to success by requiring utilities to report results in numbers that are not used anywhere else by EPA or the states. This will require water utilities to convert numbers, the public to understand how to relate those numbers to different numbers published elsewhere, and for the states to convert the numbers back to assess compliance with form and content requirements.
Funding and staff resources are two additional challenges that states face. States are finding themselves in a position where there is an ever-widening spectrum of state capabilities to respond to these many new requirements. While some states can access and utilize the many new funding sources that are available, others cannot. Political issues of using drinking water SRF funds for non-capital improvements such as for program implementation have become concerns in several states. A number of states have hiring caps that will not enable them to hire new staff to fully implement the many new provisions in the law. There is concern that the enormous expectations engendered by these new rules and programs may not be able to be met by all states.
States are committed to meeting these new challenges and want to be successful. This success, however, will be dependent on the resources and implementability of these new provisions. To address many of these issues, the states jointly crafted a document in October at the ASDWA Annual Conference entitled, Safe Drinking Water Act Implementation Principles. These principles describe a program path or alignment under which states believe implementation of the SDWA will be best achieved. A copy of the Principles is attached to this document.
Overview
As members of Congress and this subcommittee are aware, the new SDWA, which was passed on August 6, 1996, greatly expanded requirements on state programs as well as water utilities in the provision of safe drinking water to the citizens of this nation. While the old law focused primarily on providing safe water through the regulation of specific contaminants in finished water, the new law includes expansive new programs designed to ensure improved quality of source water as well as improved operations and management at water utilities and new provisions to inform the public about the quality of their drinking water. The following list represents many of the new programs mandated in the law.
The State Perspective
Resources
Many of these new initiatives and programs represent significant new challenges to states as well as water utilities. In the negotiation of the SDWA of 1996, the authorizers recognized these new burdens and authorized funding to ensure that these provisions did not become unfunded mandates. The statute authorizes $100 million per year for state PWSS grants to implement the program, $1 billion each year for a drinking water SRF, $35 million each year for health effects research and an additional $10 million each year from the SRF for this research, $30 million each year to train and certify small system operators, funding for technology assistance and finance centers, funding for sole source aquifer and wellhead protection programs, funding for ground water protection grants, funding for demonstration projects for a New York City watershed protection program, $10 million each year for unregulated contaminant monitoring in small systems and an additional $2 million each year from the SRF, $5 million each year for source water petition programs, funding for colonias, $12.5 million each year for studies of harmful substances in drinking water, funding for water borne disease occurrence studies, and health care provider training and a public education campaign.
While the states agreed to support many of these new initiatives during the reauthorization process, the understanding was that there would be money authorized and requested to ensure full implementation of these many new provisions. To date, EPA has requested no new funding for state PWSS programs and while they have requested increasing funding for the Drinking Water SRF, the fund is still not at its authorized level. States are also concerned that the Drinking Water SRF may become the primary funding mechanism of "convenience" with the serious risk of eroding the corpus of an already limited fund which, according to EPA's own estimated need of $138.4 billion, will not be sufficient to fully fund actual and anticipated infrastructure needs. Adequate funding for research is also critical if we are to ensure that future regulations are based on occurrence and meaningful public health protection.
While states are authorized to take up to 30 percent of their SRF funding for various set-asides, it can be politically and financially unfeasible for states to take this "share." At the state level they face strong opposition to reducing the corpus of the SRF fund and further reduce the amount of funding available for much needed capital improvement projects. Some of the set asides also come with a high price where states are required to match funding dollar for dollar with "new" state funds.
On the other side, some states are facing a challenge of limited personnel due to hiring freezes and ceilings at the state level. They are being asked to do more and more with no new or limited additional staff. Thus for some, more money may not be the answer unless those funds can be used for contracting vehicles to implement some of these new programs. In order for all states to be successful, Congress, EPA, and other stakeholders must understand this situation and use this as a factor when programs and regulations are being developed. The intent is not to develop programs to meet the lowest common denominator but to understand that regulations can be made easier or harder to implement and that artificial barriers that unduly complicate these new provisions should be limited to ensure the ability of all states to maximize full and effective implementation. Implementation and Timing
To ensure full implementation of the many new provisions in the law, states were prepared to address new schedules in an orderly and efficient manner that allowed them the ability to write, adopt, and implement rules in the two years authorized by the law. Thus as some programs would be in the initial stages of adoption, others would be at the implementation phase, and still others would be winding down. This was envisioned as a way for states to maximize potentially limited personnel and resources. Unfortunately, the timing of several new provisions are putting states in a position where they must redirect resources and personnel to programs before they have even adopted their own state regulations. The Consumer Confidence Report Rule is an example of where systems must submit their reports a year before states are required to have even adopted the regulation. This establishes a situation of partial primacy where EPA is implementing all or parts of the rule until states have primacy. If the states to not want EPA to implement the rule, then they must redirect their resources to tackle this effort earlier than they anticipated and using resources that had been directed for some other activity. This type of artificial barrier to full and effective implementation is untenable for the states, for the water systems, and for the public.
On a positive note, the Agency does appear to be committed to ensuring that training and guidance documents are available at or near the time of rule promulgation to allow states and the Regions to proceed expeditiously with implementation. The Agency should be complimented on this commitment and encouraged to ensure that this process continues as new rules are promulgated. EPA Headquarters, the Regions, and the states also need to build on communication tools such as newsletters, mailings, and the internet such that vehicles exist to ask questions, receive timely responses, share questions and answers raised by all parties, and share drafts of developing programs. States, through ASDWA, would like to work with EPA to ensure that these communication vehicles are developed and used to the benefit of all those implementing the new law.
Public Involvement and Decision Making
ASDWA would like to commend EPA for their efforts over the last two and a half years in encouraging and seeking public involvement in the regulatory, policy, and guidance development process. By bringing the major affected stakeholders to the table, issues, concerns, and perspectives can be identified and shared providing a greater understanding as regulations are developed by EPA. It appears that, for the most part, the National Drinking Water Advisory Council (NDWAC) working group process has been effective in including interested stakeholders. Clearly, a broader perspective assists the Agency in developing their policies and regulations.
While public involvement may ultimately lead to greater stakeholder buy-in and support of the final product, it also tends to lend itself to establishing regulations and programs that are more complex and sometimes overly prescriptive in an effort to meet numerous, sometimes conflicting positions. States are ultimately responsible for implementing these new provisions and their suggestions and recommendations on how to ensure maximum efficiency and effectiveness needs to be strongly supported by the Agency.
Conclusion
In conclusion, Congress, states, EPA, and other stakeholders should be commended for the broad vision and approach taken in the new SDWA to ensure the protection of drinking water from source to tap with the involvement of the public and interested consumers. As we celebrate the 25th Anniversary of the SDWA this year, we should be proud of the accomplishments achieved to date and the opportunity for greater public health protection in the future.
States, as the implementers of these new provisions, are committed to ensuring their success. The opportunities are many. The challenge will be whether collectively we can structure the provisions of the new law such that they are fully and efficiently implemented for the good of all consumers in this country. We must together ensure that the positive momentum and success achieved to date will continue to be realistic and possible in the future. ASDWA appreciates the opportunity to provide this testimony and looks forward to working with EPA, Congress, and other stakeholders to ensure effective implementation of the new provisions of the SDWA of 1996.