The Water System Restructuring Rule
The EPA is required to develop and implement the Water System Restructuring Rule (WSRR) under the SDWA amendments established by the America’s Water Infrastructure Act (AWIA) of 2018. The WSRR will include three main elements:(1) a new mandatory assessment authority for primacy agencies; (2) three restructuring incentives for public water systems; and, (3) new requirements for primacy agencies to demonstrate that they are able to implement the mandatory assessments and restructuring incentives as required by the SDWA.
New Mandatory Assessment Authority
WSRR will establish a new mandatory assessment authority for states or Indian tribes with primacy enforcement authority (primacy).The purpose of the mandatory assessment is to identify feasible restructuring options expected to help the assessed water system achieve greater compliance with NPDWRs. Under the rule, a primacy agency will be able to mandate a restructuring assessment of a public water system if it finds that: the water system has repeatedly violated NPDWRs; the water system is unwilling or unable to take feasible and affordable actions to comply, or has unsuccessfully attempted to take such actions; restructuring at the water system is feasible; and, restructuring at the water system is expected to achieve greater compliance. The EPA, a primacy agency, the assessed water system or an approved third party may conduct the mandatory assessment. By law, any assessment must consider the size, type and other characteristics of the assessed system, and the assessment should not be too onerous on the assessed system.
The WSRR will include three restructuring incentives for public water systems.It will establish a new federal eligibility under the DWSRF program for an assessed water system to implement the restructuring activities identified in a mandatory assessment.An assessed system will be federally eligible once the primacy agency has determined that the assessment is complete.In addition to the DWSRF incentive, the WSRR will define the requirements under state-approved restructuring plans for public water systems to be eligible for statutory enforcement relief or liability protection.Under the rule, if a primacy agency approves an eligible restructuring plan, then for up to two years, the public water system is eligible for enforcement relief.During this enforcement relief period, the state may not take enforcement action against the noncompliant system for any violation that is identified in the approved plan.If a state determines that all restructuring activities under a state-approved plan are complete, and that the additional eligibility requirements of the WSRR are met, then a compliant water system that is a partner in a restructuring plan is not liable for any of the violations at the assessed system with which it is restructuring.
New Primary Enforcement Authority (Primacy) Requirements
Finally, the WSRR will require all primacy agencies to submit a primacy revision application to EPA.The primacy application must describe how the state or Indian tribe has established procedures for:determining which water systems must perform an assessment; approving eligible assessors; reviewing and approving mandatory assessments; and, determining water system eligibility for enforcement relief or liability protection.In addition, the proposed rule establishes new reporting and recordkeeping requirements for primacy agencies to ensure they are tracking and reporting annually to EPA information about mandatory restructuring assessments and restructuring plans.